# 62013TJ0677

JUDGMENT OF THE GENERAL COURT (Third Chamber)

7 July 2015 (
  *1
  )

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‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a proceeding pursuant to the competition rules — Request relating to a set of documents — Refusal to grant access — Request relating to a single document — Table of contents — Obligation to undertake a specific and individual examination — Exception relating to the protection of the commercial interests of a third party — Exception relating to the protection of the purpose of inspections, investigations and audits — Overriding public interest — Claim for damages — Obligation to state reasons’

In Case T‐677/13,

Axa Versicherung AG, established in Cologne (Germany), represented by C. Bahr, S. Dethof and A. Malec, lawyers,

Axa Versicherung AG

applicant,

v

European Commission, represented by F. Clotuche-Duvieusart and H. Krämer, acting as Agents, assisted by R. Van der Hout and A. Köhler, lawyers,

European Commission

defendant,

supported by

Saint-Gobain Sekurit Deutschland GmbH & Co. KG, established in Aachen (Germany), represented by B. Meyring and E. Venot, lawyers,

Saint-Gobain Sekurit Deutschland GmbH & Co. KG

intervener,

APPLICATION for annulment of Commission Decision 2012/817 and 2012/3021 Gestdem of 29 October 2013, refusing two requests for access to documents in the file of Case COMP/39.125 (Carglass),

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,

Registrar: K. Andová, Administrator,

having regard to the written part of the procedure and further to the hearing on 11 February 2015,

gives the following

Judgment

Judgment

Background to the dispute

Background to the dispute

| 1 | By decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article [101 TFEU] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass) (‘the Carglass decision’), the Commission of the European Communities found that a number of undertakings had participated in a set of agreements or concerted practices in the automotive glass sector and imposed fines on them totalling some EUR 1.383 billion. |
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1

By decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article [101 TFEU] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass) (‘the Carglass decision’), the Commission of the European Communities found that a number of undertakings had participated in a set of agreements or concerted practices in the automotive glass sector and imposed fines on them totalling some EUR 1.383 billion.

| 2 | The undertakings concerned and addressees of the Carglass decision include AGC Flat Glass Europe SA (since renamed AGC Glass Europe SA), AGC Automotive Europe SA and AGC Automotive Germany GmbH (since renamed AGC Glass Germany GmbH) (together ‘AGC’), as well as Saint-Gobain Glass France SA, Saint-Gobain Sekurit France SA and Saint-Gobain Sekurit Deutschland GmbH & Co. KG (together ‘SG’). |
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2

The undertakings concerned and addressees of the Carglass decision include AGC Flat Glass Europe SA (since renamed AGC Glass Europe SA), AGC Automotive Europe SA and AGC Automotive Germany GmbH (since renamed AGC Glass Germany GmbH) (together ‘AGC’), as well as Saint-Gobain Glass France SA, Saint-Gobain Sekurit France SA and Saint-Gobain Sekurit Deutschland GmbH & Co. KG (together ‘SG’).

| 3 | By letter of 16 February 2012, registered under reference Gestdem 2012/817, the applicant, Axa Versicherung AG, which is active in particular in the motor insurance sector in Germany, submitted to the Commission a request for access to the complete version of the table of contents in the file of Case COMP/39.125, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43; ‘the first request’). The applicant based this first request on the need to support an action for damages lodged on 31 January 2012 before the Landgericht Düsseldorf (Regional Court of Düsseldorf, Germany) against AGC, in the course of which SG was subsequently joined as a third party. By decision of 7 March 2012, the Commission granted the applicant partial access to the requested document, stating that the other parts of the document could not be disclosed to it since they were covered by certain exceptions to the right of access to documents laid down in Article 4 of Regulation No 1049/2001 (‘the decision of 7 March 2012’). |
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3

By letter of 16 February 2012, registered under reference Gestdem 2012/817, the applicant, Axa Versicherung AG, which is active in particular in the motor insurance sector in Germany, submitted to the Commission a request for access to the complete version of the table of contents in the file of Case COMP/39.125, under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43; ‘the first request’). The applicant based this first request on the need to support an action for damages lodged on 31 January 2012 before the Landgericht Düsseldorf (Regional Court of Düsseldorf, Germany) against AGC, in the course of which SG was subsequently joined as a third party. By decision of 7 March 2012, the Commission granted the applicant partial access to the requested document, stating that the other parts of the document could not be disclosed to it since they were covered by certain exceptions to the right of access to documents laid down in Article 4 of Regulation No 1049/2001 (‘the decision of 7 March 2012’).

| 4 | By letter of 18 June 2012, registered under the reference Gestdem 2012/3021, the applicant submitted to the Commission a further request for access relating to the complete version of a set of documents included in the file of Case COMP/39.125 (‘the second request’). That request was refused by decision of 3 August 2012. |
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4

By letter of 18 June 2012, registered under the reference Gestdem 2012/3021, the applicant submitted to the Commission a further request for access relating to the complete version of a set of documents included in the file of Case COMP/39.125 (‘the second request’). That request was refused by decision of 3 August 2012.

| 5 | By letters of 23 March and 17 August 2012, the applicant submitted to the Commission two confirmatory applications for access to the documents in question. By decision Gestdem 2012/817 and 2012/3021 of 29 October 2013 (‘the contested decision’), the Commission granted more extensive access to the table of contents in the file of Case COMP/39.125, which it had not done in its decision of 7 March 2012, and refused the two confirmatory applications as to the remainder. |
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5

By letters of 23 March and 17 August 2012, the applicant submitted to the Commission two confirmatory applications for access to the documents in question. By decision Gestdem 2012/817 and 2012/3021 of 29 October 2013 (‘the contested decision’), the Commission granted more extensive access to the table of contents in the file of Case COMP/39.125, which it had not done in its decision of 7 March 2012, and refused the two confirmatory applications as to the remainder.

| 6 | In reaching that conclusion, the Commission found, in the first place, that the documents covered by the applicant’s two requests formed part of the file in the proceeding resulting in the Carglass decision, that several actions for annulment had been brought before the General Court against that decision and that those actions were still pending. In addition, it stated that actions for annulment were also pending before the General Court against decisions of its Hearing Officer relating to the publication of a final non-confidential version of the Carglass decision (point 1 of the contested decision). |
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6

In reaching that conclusion, the Commission found, in the first place, that the documents covered by the applicant’s two requests formed part of the file in the proceeding resulting in the Carglass decision, that several actions for annulment had been brought before the General Court against that decision and that those actions were still pending. In addition, it stated that actions for annulment were also pending before the General Court against decisions of its Hearing Officer relating to the publication of a final non-confidential version of the Carglass decision (point 1 of the contested decision).

| 7 | In the second place, the Commission clarified the scope of the applicant’s two requests. It essentially found that the first request concerned the complete version of the table of contents in the file of Case COMP/39.125 and, in particular, three categories of information which had not previously been disclosed to the applicant by the decision of 7 March 2012, that is, first, references to correspondence exchanged in the context of that case with undertakings that had submitted an application under the Commission Notice on immunity from fines and reduction of fines in cartel cases of 8 December 2006 (OJ 2006 C 298, p. 17; ‘the leniency programme’), since such information could not be inferred from the provisional non-confidential version of the Carglass decision or had not been disclosed in the actions for annulment brought against that decision; secondly, the names of natural persons, third-party undertakings and law firms that had participated in the proceeding; and thirdly, some non-public, potentially sensitive, commercial information (points 2.1 and 2.3 of the contested decision). As regards the second request, the Commission stated that it concerned a large set of documents included in the file of Case COMP/39.125. It also pointed out that, at an earlier stage of the proceeding, the Commission’s services had divided the documents at issue into four separate categories, having regard to how the applicant had classified the documents, namely correspondence exchanged with the addressees of the Carglass decision (category A); correspondence exchanged with third parties (category B); documents seized in the course of the inspections carried out during the proceedings (category C); and the internal documents of the Commission (category D) (points 2.2 and 2.3 of the contested decision). |
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7

In the second place, the Commission clarified the scope of the applicant’s two requests. It essentially found that the first request concerned the complete version of the table of contents in the file of Case COMP/39.125 and, in particular, three categories of information which had not previously been disclosed to the applicant by the decision of 7 March 2012, that is, first, references to correspondence exchanged in the context of that case with undertakings that had submitted an application under the Commission Notice on immunity from fines and reduction of fines in cartel cases of 8 December 2006 (OJ 2006 C 298, p. 17; ‘the leniency programme’), since such information could not be inferred from the provisional non-confidential version of the Carglass decision or had not been disclosed in the actions for annulment brought against that decision; secondly, the names of natural persons, third-party undertakings and law firms that had participated in the proceeding; and thirdly, some non-public, potentially sensitive, commercial information (points 2.1 and 2.3 of the contested decision). As regards the second request, the Commission stated that it concerned a large set of documents included in the file of Case COMP/39.125. It also pointed out that, at an earlier stage of the proceeding, the Commission’s services had divided the documents at issue into four separate categories, having regard to how the applicant had classified the documents, namely correspondence exchanged with the addressees of the Carglass decision (category A); correspondence exchanged with third parties (category B); documents seized in the course of the inspections carried out during the proceedings (category C); and the internal documents of the Commission (category D) (points 2.2 and 2.3 of the contested decision).

| 8 | In the third place, the Commission noted that a number of reasons had led it to refuse the second request (points 3 and 4 of the contested decision). First of all, it submitted, in essence, that in view of the provisions specific to proceedings pursuant to the competition rules set out in Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) and in Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), the documents included in the file of proceedings pursuant to the competition rules were covered by a general presumption of inaccessibility under Regulation No 1049/2001 (point 4.1 of the contested decision). Next, it stated that in the present case, it should be presumed, in a general way, that all of the documents covered by the second request fell within the exceptions to the right of access to documents laid down in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits, and the first indent of Article 4(2) of that regulation, relating to the protection of commercial interests (point 4.2 of the contested decision). Lastly, the Commission argued that all of the documents in category D also fell within the exception laid down in the second subparagraph of Article 4(3) of that regulation, relating to the protection of opinions for the internal use of the institution concerned (point 4.2 of the contested decision). |
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8

In the third place, the Commission noted that a number of reasons had led it to refuse the second request (points 3 and 4 of the contested decision). First of all, it submitted, in essence, that in view of the provisions specific to proceedings pursuant to the competition rules set out in Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) and in Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18), the documents included in the file of proceedings pursuant to the competition rules were covered by a general presumption of inaccessibility under Regulation No 1049/2001 (point 4.1 of the contested decision). Next, it stated that in the present case, it should be presumed, in a general way, that all of the documents covered by the second request fell within the exceptions to the right of access to documents laid down in the third indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of the purpose of inspections, investigations and audits, and the first indent of Article 4(2) of that regulation, relating to the protection of commercial interests (point 4.2 of the contested decision). Lastly, the Commission argued that all of the documents in category D also fell within the exception laid down in the second subparagraph of Article 4(3) of that regulation, relating to the protection of opinions for the internal use of the institution concerned (point 4.2 of the contested decision).

| 9 | In the fourth place, the Commission decided to give the applicant additional access to the table of contents in the file of Case COMP/39.125 (points 3 and 5 of the contested decision). It stated that it could disclose information to the applicant from which the identity of the law firms that had represented the undertakings party to the proceeding could be ascertained, since such information was already in the public domain. However, it maintained that the other information to which it had refused the applicant access in its decision of 7 March 2012 could still not be disclosed, be it references to correspondence exchanged with the undertakings that had submitted an application under the leniency programme in the context of the proceeding (point 5.1 of the contested decision), the names of natural persons (point 5.2 of the contested decision) and third-party undertakings (point 5.3 of the contested decision) which were involved in the proceeding, or various items of commercially sensitive information (point 5.4 of the contested decision). |
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9

In the fourth place, the Commission decided to give the applicant additional access to the table of contents in the file of Case COMP/39.125 (points 3 and 5 of the contested decision). It stated that it could disclose information to the applicant from which the identity of the law firms that had represented the undertakings party to the proceeding could be ascertained, since such information was already in the public domain. However, it maintained that the other information to which it had refused the applicant access in its decision of 7 March 2012 could still not be disclosed, be it references to correspondence exchanged with the undertakings that had submitted an application under the leniency programme in the context of the proceeding (point 5.1 of the contested decision), the names of natural persons (point 5.2 of the contested decision) and third-party undertakings (point 5.3 of the contested decision) which were involved in the proceeding, or various items of commercially sensitive information (point 5.4 of the contested decision).

| 10 | In the fifth and last place, the Commission indicated that it could not grant the applicant partial access to the documents in question, aside from the table of contents of the file (point 6 of the contested decision). It also stated that it was unable to identify any overriding public interest within the meaning of Regulation No 1049/2001 which might justify disclosure notwithstanding the applicability of some of the exceptions laid down in Article 4(2) and (3) thereof (point 7 of the contested decision). |
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10

In the fifth and last place, the Commission indicated that it could not grant the applicant partial access to the documents in question, aside from the table of contents of the file (point 6 of the contested decision). It also stated that it was unable to identify any overriding public interest within the meaning of Regulation No 1049/2001 which might justify disclosure notwithstanding the applicability of some of the exceptions laid down in Article 4(2) and (3) thereof (point 7 of the contested decision).

Procedure and forms of order sought by the parties

Procedure and forms of order sought by the parties

| 11 | By application lodged at the Court Registry on 19 December 2013, the applicant brought the present action. |
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11

By application lodged at the Court Registry on 19 December 2013, the applicant brought the present action.

| 12 | Following delivery of the judgment of the Court of Justice of 27 February 2014 in Commission v EnBW (C‐365/12 P, ECR, EU:C:2014:112), the General Court asked the parties to submit written observations on the possible effect of that judgment on the present case. The parties complied with that request within the time allowed. |
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12

Following delivery of the judgment of the Court of Justice of 27 February 2014 in Commission v EnBW (C‐365/12 P, ECR, EU:C:2014:112), the General Court asked the parties to submit written observations on the possible effect of that judgment on the present case. The parties complied with that request within the time allowed.

Commission

EnBW

| 13 | By document lodged at the Court Registry on 28 April 2014, Saint-Gobain Sekurit Deutschland GmbH & Co. KG (‘SGSD’) applied for leave to intervene in the action in support of the form of order sought by the Commission. The parties did not raise any objections in that regard. |
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13

By document lodged at the Court Registry on 28 April 2014, Saint-Gobain Sekurit Deutschland GmbH & Co. KG (‘SGSD’) applied for leave to intervene in the action in support of the form of order sought by the Commission. The parties did not raise any objections in that regard.

| 14 | By order of the President of the Third Chamber of the General Court of 27 June 2014, SGSD was granted leave to intervene. |
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14

By order of the President of the Third Chamber of the General Court of 27 June 2014, SGSD was granted leave to intervene.

| 15 | The Court also asked the Commission to produce the full version of the table of contents in the file of Case COMP/39.125, by order of 24 June 2014, and on 25 June 2014 put written questions to the parties. The parties did what was required. |
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15

The Court also asked the Commission to produce the full version of the table of contents in the file of Case COMP/39.125, by order of 24 June 2014, and on 25 June 2014 put written questions to the parties. The parties did what was required.

| 16 | After deciding, pursuant to Article 47(1) of the Rules of Procedure of the General Court of 2 May 1991, that a second exchange of pleadings was not necessary, the Court authorised the parties to supplement the documents, following a reasoned request from the applicant for leave to submit more detailed submissions on the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112). |
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16

After deciding, pursuant to Article 47(1) of the Rules of Procedure of the General Court of 2 May 1991, that a second exchange of pleadings was not necessary, the Court authorised the parties to supplement the documents, following a reasoned request from the applicant for leave to submit more detailed submissions on the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112).

Commission

EnBW

| 17 | Acting upon a report of the Judge-Rapporteur, the President of the Third Chamber of the General Court decided to open the oral part of the procedure. |
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17

Acting upon a report of the Judge-Rapporteur, the President of the Third Chamber of the General Court decided to open the oral part of the procedure.

| 18 | At the hearing held on 11 February 2015, the parties presented their oral arguments and answered the oral questions put by the Court. |
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18

At the hearing held on 11 February 2015, the parties presented their oral arguments and answered the oral questions put by the Court.

| 19 | The applicant claims that the Court should:
  
  
  
  
  
  — | annul the contested decision; |
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19

The applicant claims that the Court should:

—

annul the contested decision;

| — | order the Commission to pay the costs. |
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—

order the Commission to pay the costs.

| 20 | The Commission contends that the Court should:
  
  
  
  
  
  — | dismiss the action; |
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20

The Commission contends that the Court should:

—

dismiss the action;

| — | order the applicant to pay the costs. |
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—

order the applicant to pay the costs.

| 21 | SGSD contends that the Court should:
  
  
  
  
  
  — | dismiss the action; |
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21

SGSD contends that the Court should:

—

dismiss the action;

| — | order the applicant to pay the costs. |
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—

order the applicant to pay the costs.

Law

Law

| 22 | In support of its action, the applicant relies on five pleas in law, alleging, in essence:
  
  
  
  
  
  — | first, infringement of Articles 2 and 4 of Regulation No 1049/2001 in so far as the Commission failed to comply with its obligation to carry out an individual and specific examination of the documents covered by the second request; |
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22

In support of its action, the applicant relies on five pleas in law, alleging, in essence:

—

first, infringement of Articles 2 and 4 of Regulation No 1049/2001 in so far as the Commission failed to comply with its obligation to carry out an individual and specific examination of the documents covered by the second request;

| — | secondly, infringement of the first and third indents of Article 4(2) and of the second subparagraph of Article 4(3) of Regulation No 1049/2001 in so far as the Commission misinterpreted and misapplied the exceptions to the right of access to documents and the notion of overriding public interest set out in those provisions when examining the second request; |
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—

secondly, infringement of the first and third indents of Article 4(2) and of the second subparagraph of Article 4(3) of Regulation No 1049/2001 in so far as the Commission misinterpreted and misapplied the exceptions to the right of access to documents and the notion of overriding public interest set out in those provisions when examining the second request;

| — | thirdly, infringement of Article 4(6) of Regulation No 1049/2001 in so far as the Commission wrongly refused to grant the applicant partial access to the documents covered by the second request; |
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—

thirdly, infringement of Article 4(6) of Regulation No 1049/2001 in so far as the Commission wrongly refused to grant the applicant partial access to the documents covered by the second request;

| — | fourthly, infringement of the first and third indents of Article 4(2), of the second subparagraph of Article 4(3) and of Article 4(1)(b) of Regulation No 1049/2001 in so far as the Commission wrongly refused to disclose to the applicant the whole of the document covered by the first request; and |
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—

fourthly, infringement of the first and third indents of Article 4(2), of the second subparagraph of Article 4(3) and of Article 4(1)(b) of Regulation No 1049/2001 in so far as the Commission wrongly refused to disclose to the applicant the whole of the document covered by the first request; and

| — | fifthly, that the statement of reasons was inadequate. |
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—

fifthly, that the statement of reasons was inadequate.

| 23 | In the light of their content, the first, second and third pleas should be considered together, alongside the fifth plea in so far as it concerns the second request (see, by analogy, judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 33 and 34), followed by the fourth plea and the fifth plea in so far as it concerns the first request. |
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23

In the light of their content, the first, second and third pleas should be considered together, alongside the fifth plea in so far as it concerns the second request (see, by analogy, judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 33 and 34), followed by the fourth plea and the fifth plea in so far as it concerns the first request.

Commission

EnBW

A – The first, second and third pleas in law, as well as the fifth plea in law in so far as it concerns the second request

The first, second and third pleas in law, as well as the fifth plea in law in so far as it concerns the second request

| 24 | By its first plea, the applicant contends, in essence, that the Commission erred in law by considering, based on rigid and abstract reasoning that could be invoked to refuse all requests for access to documents relating to a proceeding pursuant to the competition rules, that all of the documents covered by the second request were caught by a general presumption of inaccessibility under Regulation No 1049/2001 and, consequently, by refusing the request without first carrying out an individual and specific examination of the requested documents. |
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24

By its first plea, the applicant contends, in essence, that the Commission erred in law by considering, based on rigid and abstract reasoning that could be invoked to refuse all requests for access to documents relating to a proceeding pursuant to the competition rules, that all of the documents covered by the second request were caught by a general presumption of inaccessibility under Regulation No 1049/2001 and, consequently, by refusing the request without first carrying out an individual and specific examination of the requested documents.

| 25 | By its second plea, the applicant submits, in essence, that the Commission misinterpreted and misapplied the three exceptions to the right of access to documents relied on in the contested decision, which is argued in relation to all of the documents covered by the second request or in relation to the categories of documents artificially identified by the Commission’s services (see paragraph 7 above). Neither the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001 concerning the protection of commercial interests, nor that provided for in the third indent of Article 4(2) thereof concerning the protection of the purpose of inspections, investigations and audits, nor that set out in the second subparagraph of Article 4(3) thereof concerning the protection of the internal opinions of the institutions, can be relied on in this case. In any event, the Commission committed an error of law or of assessment by failing to take account of the overriding public interest in allowing the victims of anticompetitive practices to exercise their right to compensation and, after striking a balance between this overriding public interest and the interest protected by each of the three exceptions in question, to disclose to the applicant the documents in the file of Case COMP/39.125 which it needed so that it could actually exercise its right. |
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25

By its second plea, the applicant submits, in essence, that the Commission misinterpreted and misapplied the three exceptions to the right of access to documents relied on in the contested decision, which is argued in relation to all of the documents covered by the second request or in relation to the categories of documents artificially identified by the Commission’s services (see paragraph 7 above). Neither the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001 concerning the protection of commercial interests, nor that provided for in the third indent of Article 4(2) thereof concerning the protection of the purpose of inspections, investigations and audits, nor that set out in the second subparagraph of Article 4(3) thereof concerning the protection of the internal opinions of the institutions, can be relied on in this case. In any event, the Commission committed an error of law or of assessment by failing to take account of the overriding public interest in allowing the victims of anticompetitive practices to exercise their right to compensation and, after striking a balance between this overriding public interest and the interest protected by each of the three exceptions in question, to disclose to the applicant the documents in the file of Case COMP/39.125 which it needed so that it could actually exercise its right.

| 26 | By its third plea, the applicant claims that the Commission infringed Article 4(6) of Regulation No 1049/2001 as well as the principle of proportionality by refusing it access to the documents or parts of documents covered by the second request which were not capable of falling within the exceptions on which the Commission relied in the contested decision. |
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26

By its third plea, the applicant claims that the Commission infringed Article 4(6) of Regulation No 1049/2001 as well as the principle of proportionality by refusing it access to the documents or parts of documents covered by the second request which were not capable of falling within the exceptions on which the Commission relied in the contested decision.

| 27 | By its fifth plea, the applicant asserts, in particular, that the Commission failed to comply with the requirement to state reasons set out in Article 296 TFEU by refusing the second request based on general and abstract reasoning applied to all of the documents or categories of documents in question, instead of taking their specific content into account. |
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27

By its fifth plea, the applicant asserts, in particular, that the Commission failed to comply with the requirement to state reasons set out in Article 296 TFEU by refusing the second request based on general and abstract reasoning applied to all of the documents or categories of documents in question, instead of taking their specific content into account.

| 28 | In response to the written questions put by the Court following the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112), and in its reply, the applicant essentially argued that this judgment did not affect the substance of its various pleas. |
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28

In response to the written questions put by the Court following the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112), and in its reply, the applicant essentially argued that this judgment did not affect the substance of its various pleas.

Commission

EnBW

| 29 | The Commission, supported by SGSD, disputes all of those arguments. |
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29

The Commission, supported by SGSD, disputes all of those arguments.

| 30 | It is appropriate to examine, first of all, the different arguments put forward by the applicant challenging the Commission’s finding that it should be presumed, in a general way, that the documents covered by the second request fell within some of the exceptions to the right of access to documents established by Regulation No 1049/2001 and, secondly, the arguments objecting to the Commission’s finding that there was no overriding public interest in disclosure of the documents. |
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30

It is appropriate to examine, first of all, the different arguments put forward by the applicant challenging the Commission’s finding that it should be presumed, in a general way, that the documents covered by the second request fell within some of the exceptions to the right of access to documents established by Regulation No 1049/2001 and, secondly, the arguments objecting to the Commission’s finding that there was no overriding public interest in disclosure of the documents.

1. The general presumption and the exceptions applied by the Commission

The general presumption and the exceptions applied by the Commission

| 31 | Pursuant to Article 15(3) TFEU, all citizens of the European Union and all natural or legal persons residing or having their registered office in a Member State have a right of access to documents of the European Union’s institutions. |
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31

Pursuant to Article 15(3) TFEU, all citizens of the European Union and all natural or legal persons residing or having their registered office in a Member State have a right of access to documents of the European Union’s institutions.

| 32 | On that basis, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the European Union’s institutions, subject to — as is apparent from, inter alia, the system of exceptions laid down in Article 4 thereof — certain limits based on reasons of public or private interest (judgments of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‐139/07 P, ECR, EU:C:2010:376, paragraph 51, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 61). |
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32

On that basis, Regulation No 1049/2001 is designed to confer on the public as wide a right of access as possible to documents of the European Union’s institutions, subject to — as is apparent from, inter alia, the system of exceptions laid down in Article 4 thereof — certain limits based on reasons of public or private interest (judgments of 29 June 2010 in Commission v Technische Glaswerke Ilmenau, C‐139/07 P, ECR, EU:C:2010:376, paragraph 51, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 61).

Commission

Technische Glaswerke Ilmenau

Commission

EnBW

| 33 | In particular, under the first and third indents of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where its disclosure would undermine the protection of the commercial interests of a specific natural or legal person or the purpose of inspections, investigations and audits, unless there is an overriding public interest in such disclosure. |
| --- | --- |

33

In particular, under the first and third indents of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where its disclosure would undermine the protection of the commercial interests of a specific natural or legal person or the purpose of inspections, investigations and audits, unless there is an overriding public interest in such disclosure.

| 34 | That system of exceptions is based on a balancing of the different interests at stake, that is to say the interests which would be favoured by disclosure of the requested document or documents and those which would be jeopardised by such disclosure (judgments of 14 November 2013 in LPN and Finland v Commission, C‐514/11 P and C‐605/11 P, ECR, EU:C:2013:738, paragraph 42, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 63). |
| --- | --- |

34

That system of exceptions is based on a balancing of the different interests at stake, that is to say the interests which would be favoured by disclosure of the requested document or documents and those which would be jeopardised by such disclosure (judgments of 14 November 2013 in LPN and Finland v Commission, C‐514/11 P and C‐605/11 P, ECR, EU:C:2013:738, paragraph 42, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 63).

LPN and Finland

Commission

Commission

EnBW

| 35 | Since such exceptions derogate from the principle of the widest possible public access to documents of the European Union’s institutions, they must be interpreted and applied strictly (judgments of 17 October 2013 in Council v Access Info Europe, C‐280/11 P, ECR, EU:C:2013:671, paragraph 30, and 3 July 2014Council v in’t Veld, C‐350/12 P, ECR, EU:C:2014:2039, paragraph 48). |
| --- | --- |

35

Since such exceptions derogate from the principle of the widest possible public access to documents of the European Union’s institutions, they must be interpreted and applied strictly (judgments of 17 October 2013 in Council v Access Info Europe, C‐280/11 P, ECR, EU:C:2013:671, paragraph 30, and 3 July 2014Council v in’t Veld, C‐350/12 P, ECR, EU:C:2014:2039, paragraph 48).

Council

Access Info Europe

Council

in

t Veld

| 36 | Consequently, in order to justify a refusal to grant access to a document disclosure of which has been requested, it is not sufficient, in principle, for the requested document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001. As a rule, the institution to which the request is addressed must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by the exception or exceptions relied on (judgments of 1 July 2008 in Sweden and Turco v Council, C‐39/05 P and C‐52/05 P, ECR, EU:C:2008:374, paragraph 49, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 64). Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (judgments in Sweden and Turco v Council, paragraph 43, and Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraph 31). |
| --- | --- |

36

Consequently, in order to justify a refusal to grant access to a document disclosure of which has been requested, it is not sufficient, in principle, for the requested document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001. As a rule, the institution to which the request is addressed must also provide explanations as to how access to that document could specifically and actually undermine the interest protected by the exception or exceptions relied on (judgments of 1 July 2008 in Sweden and Turco v Council, C‐39/05 P and C‐52/05 P, ECR, EU:C:2008:374, paragraph 49, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 64). Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (judgments in Sweden and Turco v Council, paragraph 43, and Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraph 31).

Sweden and Turco

Council

Commission

EnBW

Sweden and Turco

Council

Council

Access Info Europe

| 37 | However, it is open to the institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a similar kind are likely to apply to requests relating to documents of the same nature (judgments in Commission v Technische Glaswerke Ilmenau, cited in paragraph 32 above, EU:C:2010:376, paragraph 54, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 65). |
| --- | --- |

37

However, it is open to the institution concerned to base its decisions on general presumptions which apply to certain categories of documents, as considerations of a similar kind are likely to apply to requests relating to documents of the same nature (judgments in Commission v Technische Glaswerke Ilmenau, cited in paragraph 32 above, EU:C:2010:376, paragraph 54, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 65).

Commission

Technische Glaswerke Ilmenau

Commission

EnBW

| 38 | Thus, where the request relates to a set of documents of a given kind, it is open to the institution concerned to base its decision on a general presumption that their disclosure would, in principle, undermine the protection of one or other of the interests listed in Article 4 of Regulation No 1049/2001, enabling it to deal with a global request accordingly (judgments in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraphs 47 and 48, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 67 and 68). |
| --- | --- |

38

Thus, where the request relates to a set of documents of a given kind, it is open to the institution concerned to base its decision on a general presumption that their disclosure would, in principle, undermine the protection of one or other of the interests listed in Article 4 of Regulation No 1049/2001, enabling it to deal with a global request accordingly (judgments in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraphs 47 and 48, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 67 and 68).

LPN and Finland

Commission

Commission

EnBW

| 39 | In particular, in the case of requests relating to a set of documents included in the file of a proceeding pursuant to the competition rules, the EU judicature has held, first of all, that the Commission was entitled to presume, without carrying out an individual and specific examination of each of those documents, that their disclosure would, in principle, undermine the protection of the purpose of inspections and investigations as well as the protection of the commercial interests of the undertakings party to the proceeding, which are closely linked in such a context (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 79 to 93, and 13 September 2013Netherlands v Commission, T‐380/08, ECR, EU:T:2013:480, paragraphs 30 to 42). |
| --- | --- |

39

In particular, in the case of requests relating to a set of documents included in the file of a proceeding pursuant to the competition rules, the EU judicature has held, first of all, that the Commission was entitled to presume, without carrying out an individual and specific examination of each of those documents, that their disclosure would, in principle, undermine the protection of the purpose of inspections and investigations as well as the protection of the commercial interests of the undertakings party to the proceeding, which are closely linked in such a context (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 79 to 93, and 13 September 2013Netherlands v Commission, T‐380/08, ECR, EU:T:2013:480, paragraphs 30 to 42).

Commission

EnBW

Netherlands

Commission

| 40 | In the light of the reasons underpinning this case-law (see paragraphs 37 and 38 above), the application of a presumption of this kind is not restricted to requests seeking access to ‘all’ of the documents included in the file of a proceeding pursuant to the competition rules, or even to requests relating to a ‘general and undifferentiated’ set of documents within such a proceeding, as the applicant claimed in its reply. On the contrary, as the Commission and SGSD correctly pointed out in the rejoinder and the statement in intervention, this presumption can also be applied to requests relating to a more specific set of documents in the file, identified by reference to their common characteristics or the fact they fall within one or more general categories (see, to that effect, judgment of 28 June 2012 in Commission v Éditions Odile Jacob, C‐404/10 P, ECR, EU:C:2012:393, paragraphs 10 and 123), as the applicant claims to have done in this case. All the same, the identification carried out by the applicant is very relative, since the interested party simply divided all of the documents referred to in the table of contents of the file into three categories, depending on whether it considered them to be ‘relevant’, ‘possibly relevant’ or ‘irrelevant’, and appended the numbers ‘1’, ‘2’ or ‘3’ beside the appropriate references according to that categorisation. |
| --- | --- |

40

In the light of the reasons underpinning this case-law (see paragraphs 37 and 38 above), the application of a presumption of this kind is not restricted to requests seeking access to ‘all’ of the documents included in the file of a proceeding pursuant to the competition rules, or even to requests relating to a ‘general and undifferentiated’ set of documents within such a proceeding, as the applicant claimed in its reply. On the contrary, as the Commission and SGSD correctly pointed out in the rejoinder and the statement in intervention, this presumption can also be applied to requests relating to a more specific set of documents in the file, identified by reference to their common characteristics or the fact they fall within one or more general categories (see, to that effect, judgment of 28 June 2012 in Commission v Éditions Odile Jacob, C‐404/10 P, ECR, EU:C:2012:393, paragraphs 10 and 123), as the applicant claims to have done in this case. All the same, the identification carried out by the applicant is very relative, since the interested party simply divided all of the documents referred to in the table of contents of the file into three categories, depending on whether it considered them to be ‘relevant’, ‘possibly relevant’ or ‘irrelevant’, and appended the numbers ‘1’, ‘2’ or ‘3’ beside the appropriate references according to that categorisation.

Commission

Éditions Odile Jacob

| 41 | The EU judicature has also held that the Commission is entitled to apply such a general presumption provided that the proceeding concerned cannot be regarded as closed, either because it has not yet resulted in the adoption of a decision, or because actions for annulment were brought against that decision and are still pending when the Commission receives the request for access to the documents included in the corresponding file and takes a decision thereon (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 70, 98 and 99, and Netherlands v Commission, cited in paragraph 39 above, EU:T:2013:480, paragraph 43). |
| --- | --- |

41

The EU judicature has also held that the Commission is entitled to apply such a general presumption provided that the proceeding concerned cannot be regarded as closed, either because it has not yet resulted in the adoption of a decision, or because actions for annulment were brought against that decision and are still pending when the Commission receives the request for access to the documents included in the corresponding file and takes a decision thereon (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 70, 98 and 99, and Netherlands v Commission, cited in paragraph 39 above, EU:T:2013:480, paragraph 43).

Commission

EnBW

Netherlands

Commission

| 42 | Lastly, the Court of Justice has found that the possibility for the Commission to apply a general presumption in order to deal with a request for access relating to a set of documents means that the documents in question fall outside the scope of the obligation to disclose their content, in full or even in part (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 134, and 7 October 2014Schenker v Commission, T‐534/11, ECR, EU:T:2014:854, paragraph 108). |
| --- | --- |

42

Lastly, the Court of Justice has found that the possibility for the Commission to apply a general presumption in order to deal with a request for access relating to a set of documents means that the documents in question fall outside the scope of the obligation to disclose their content, in full or even in part (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 134, and 7 October 2014Schenker v Commission, T‐534/11, ECR, EU:T:2014:854, paragraph 108).

Commission

EnBW

Schenker

Commission

| 43 | In the present case, first and foremost, it is common ground that the second request related to a set of documents in the file of Case COMP/39.125. In response to the written questions put by the Court, the applicant made clear that this request related to two categories of documents, namely 2425 documents it considered to be ‘relevant’ as well as 1523 documents it considered to be ‘possibly relevant’ for the purpose of its action for damages against AGC and SG, thus totalling 3948 documents. The Commission stated, without being contradicted, that this represented approximately 90% of the documents in the file at issue. |
| --- | --- |

43

In the present case, first and foremost, it is common ground that the second request related to a set of documents in the file of Case COMP/39.125. In response to the written questions put by the Court, the applicant made clear that this request related to two categories of documents, namely 2425 documents it considered to be ‘relevant’ as well as 1523 documents it considered to be ‘possibly relevant’ for the purpose of its action for damages against AGC and SG, thus totalling 3948 documents. The Commission stated, without being contradicted, that this represented approximately 90% of the documents in the file at issue.

| 44 | In addition, all of these 3948 documents clearly related to an inspection and investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. They were drawn up or collected by the Commission during the investigation, which included inspections, conducted in Case COMP/39.125 in order to gather information and evidence so that the Commission could determine whether or not the EU rules on competition had been infringed. Furthermore, in the light of the objective of that proceeding, these documents were likely to contain commercially sensitive information relating to the strategy and activities of the parties, as well as their business dealings with third parties (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 79, and Netherlands v Commission, cited in paragraph 39 above, EU:T:2013:480, paragraph 34). |
| --- | --- |

44

In addition, all of these 3948 documents clearly related to an inspection and investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. They were drawn up or collected by the Commission during the investigation, which included inspections, conducted in Case COMP/39.125 in order to gather information and evidence so that the Commission could determine whether or not the EU rules on competition had been infringed. Furthermore, in the light of the objective of that proceeding, these documents were likely to contain commercially sensitive information relating to the strategy and activities of the parties, as well as their business dealings with third parties (see, to that effect, judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 79, and Netherlands v Commission, cited in paragraph 39 above, EU:T:2013:480, paragraph 34).

Commission

EnBW

Netherlands

Commission

| 45 | Lastly, it is not disputed that, both when the applicant submitted the second request to the Commission and when the Commission took a decision thereon, there were several actions for annulment of the Carglass decision pending before the General Court. These actions subsequently gave rise to judgments of 27 March 2014 in Saint-Gobain Glass France and Others v Commission (T‐56/09 and T‐73/09, ECR, EU:T:2014:160); 10 October 2014Soliver v Commission (T‐68/09, ECR, EU:T:2014:867); and 17 December 2014Pilkington Group and Others v Commission (T‐72/09, EU:T:2014:1094). |
| --- | --- |

45

Lastly, it is not disputed that, both when the applicant submitted the second request to the Commission and when the Commission took a decision thereon, there were several actions for annulment of the Carglass decision pending before the General Court. These actions subsequently gave rise to judgments of 27 March 2014 in Saint-Gobain Glass France and Others v Commission (T‐56/09 and T‐73/09, ECR, EU:T:2014:160); 10 October 2014Soliver v Commission (T‐68/09, ECR, EU:T:2014:867); and 17 December 2014Pilkington Group and Others v Commission (T‐72/09, EU:T:2014:1094).

Saint-Gobain Glass France and Others

Commission

Soliver

Commission

Pilkington Group and Others

Commission

| 46 | In view of this information, mentioned in points 1 and 2.2 to 2.3 of the contested decision, the Commission was able to find, without failing to comply with its obligation to state reasons and without committing an error of law or of assessment, that the 3948 documents to which the applicant’s second request related were all covered by a general presumption that their disclosure would, in principle, undermine the exception relating to the protection of the purpose of inspections and investigations laid down in the third indent of Article 4(2) of Regulation No 1049/2001. |
| --- | --- |

46

In view of this information, mentioned in points 1 and 2.2 to 2.3 of the contested decision, the Commission was able to find, without failing to comply with its obligation to state reasons and without committing an error of law or of assessment, that the 3948 documents to which the applicant’s second request related were all covered by a general presumption that their disclosure would, in principle, undermine the exception relating to the protection of the purpose of inspections and investigations laid down in the third indent of Article 4(2) of Regulation No 1049/2001.

| 47 | Having regard to the case-law mentioned in paragraph 42 above, the Commission also found, without causing the contested decision to be vitiated by an inadequate statement of reasons and without committing an error of law or of appreciation, that it could not grant even partial access to the 3948 documents in question. |
| --- | --- |

47

Having regard to the case-law mentioned in paragraph 42 above, the Commission also found, without causing the contested decision to be vitiated by an inadequate statement of reasons and without committing an error of law or of appreciation, that it could not grant even partial access to the 3948 documents in question.

| 48 | None of the other arguments put forward by the applicant in the context of these pleas is capable of calling that finding into question. |
| --- | --- |

48

None of the other arguments put forward by the applicant in the context of these pleas is capable of calling that finding into question.

| 49 | In particular, first of all, the applicant has no grounds for taking issue with the Commission for having drawn up artificial categories of documents and having applied abstract and interchangeable reasoning to them. |
| --- | --- |

49

In particular, first of all, the applicant has no grounds for taking issue with the Commission for having drawn up artificial categories of documents and having applied abstract and interchangeable reasoning to them.

| 50 | It is true that, when describing the scope of the second request, the Commission stated that its services had found, at an earlier and provisional stage of dealing with the request, that the 3948 documents concerned fell within four different categories, based on the applicants’ own classification (point 2.2 of the contested decision). |
| --- | --- |

50

It is true that, when describing the scope of the second request, the Commission stated that its services had found, at an earlier and provisional stage of dealing with the request, that the 3948 documents concerned fell within four different categories, based on the applicants’ own classification (point 2.2 of the contested decision).

| 51 | However, when it subsequently assessed that request, the Commission did not reproduce the categories previously identified by its services, but instead considered, in essence, that the general presumption which it had decided to rely on covered all of the categories of documents to which the request related, all of the documents in each of those categories and each of those documents in their entirety. |
| --- | --- |

51

However, when it subsequently assessed that request, the Commission did not reproduce the categories previously identified by its services, but instead considered, in essence, that the general presumption which it had decided to rely on covered all of the categories of documents to which the request related, all of the documents in each of those categories and each of those documents in their entirety.

| 52 | In any event, it made no difference whether the 3948 documents in question fell within one or other of the categories drawn up by the Commission’s services, since the case-law allowed that institution to base itself, as it did in the contested decision, on a single general presumption applicable to all of the documents, regarded for the purpose of applying the presumption as falling within a single category (see, to that effect and by analogy, judgments in Commission v Technische Glaswerke Ilmenau, cited in paragraph 32 above, EU:C:2010:376, paragraph 61, and LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 64), without first carrying out an individual and specific examination of each document. |
| --- | --- |

52

In any event, it made no difference whether the 3948 documents in question fell within one or other of the categories drawn up by the Commission’s services, since the case-law allowed that institution to base itself, as it did in the contested decision, on a single general presumption applicable to all of the documents, regarded for the purpose of applying the presumption as falling within a single category (see, to that effect and by analogy, judgments in Commission v Technische Glaswerke Ilmenau, cited in paragraph 32 above, EU:C:2010:376, paragraph 61, and LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 64), without first carrying out an individual and specific examination of each document.

Commission

Technische Glaswerke Ilmenau

LPN and Finland

Commission

| 53 | Secondly, the applicant’s complaints relating to the specific reasoning that the Commission dedicated to the risks associated with the possible disclosure of the documents collected under the leniency programme (sixth subparagraph of point 4.1 and eighth to tenth subparagraphs of point 4.2 of the contested decision) are ineffective in the context of these pleas. |
| --- | --- |

53

Secondly, the applicant’s complaints relating to the specific reasoning that the Commission dedicated to the risks associated with the possible disclosure of the documents collected under the leniency programme (sixth subparagraph of point 4.1 and eighth to tenth subparagraphs of point 4.2 of the contested decision) are ineffective in the context of these pleas.

| 54 | In order to deal with the second request (relating to a set of 3948 documents included in the file of Case COMP/39.125), and without prejudice to the handling of the first request (relating only to the table of contents in the file), the Commission was able to regard those documents as being covered by the general presumption referred to in paragraphs 46 and 52 above, irrespective of any specific considerations relating to the nature or content of the documents collected under the leniency programme (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 97). |
| --- | --- |

54

In order to deal with the second request (relating to a set of 3948 documents included in the file of Case COMP/39.125), and without prejudice to the handling of the first request (relating only to the table of contents in the file), the Commission was able to regard those documents as being covered by the general presumption referred to in paragraphs 46 and 52 above, irrespective of any specific considerations relating to the nature or content of the documents collected under the leniency programme (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 97).

Commission

EnBW

| 55 | Thirdly, the arguments put forward by the applicant to challenge the Commission’s basing its refusal to grant the second request cumulatively on the need not to undermine the protection of the commercial interests of third parties (twelfth subparagraph of point 4.2 of the contested decision) and, as regards its internal documents, on the need not to undermine the protection of opinions for internal use (eleventh and twelfth subparagraphs of point 4.2 of the contested decision) are ineffective. |
| --- | --- |

55

Thirdly, the arguments put forward by the applicant to challenge the Commission’s basing its refusal to grant the second request cumulatively on the need not to undermine the protection of the commercial interests of third parties (twelfth subparagraph of point 4.2 of the contested decision) and, as regards its internal documents, on the need not to undermine the protection of opinions for internal use (eleventh and twelfth subparagraphs of point 4.2 of the contested decision) are ineffective.

| 56 | It is true that an EU institution may, when assessing a request for access to documents held by it, take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 (see, to that effect, judgment in Commission v Éditions Odile Jacob, cited in paragraph 40 above, EU:C:2012:393, paragraphs 113 and 114), as the Commission did in the present case. |
| --- | --- |

56

It is true that an EU institution may, when assessing a request for access to documents held by it, take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 (see, to that effect, judgment in Commission v Éditions Odile Jacob, cited in paragraph 40 above, EU:C:2012:393, paragraphs 113 and 114), as the Commission did in the present case.

Commission

Éditions Odile Jacob

| 57 | However, possible errors of law or of assessment committed by the Commission when applying the exceptions relating to the protection of commercial interests as well as the protection of opinions for the Commission’s internal use have no bearing in the present case on the lawfulness of the contested decision, since that decision does not seem to be unlawful in so far as it presumed, in a general way, that all of the documents in question were fully covered by the exception relating to the protection of the purpose of inspections and investigations, as held in paragraph 46 above. |
| --- | --- |

57

However, possible errors of law or of assessment committed by the Commission when applying the exceptions relating to the protection of commercial interests as well as the protection of opinions for the Commission’s internal use have no bearing in the present case on the lawfulness of the contested decision, since that decision does not seem to be unlawful in so far as it presumed, in a general way, that all of the documents in question were fully covered by the exception relating to the protection of the purpose of inspections and investigations, as held in paragraph 46 above.

| 58 | Fourthly, the new arguments put forward in the reply, based on the Commission’s proposal COM (2013) 404 final of 11 June 2013 for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, are irrelevant, on the assumption that they are admissible, which the Commission disputes. Irrespective of any considerations relating to the status and scope of this proposal when the Commission adopted the contested decision, the decision clearly states that the provisions set out in the proposal are without prejudice to the rules on the right of access to documents provided for in Regulation No 1049/2001, as the Commission correctly points out. |
| --- | --- |

58

Fourthly, the new arguments put forward in the reply, based on the Commission’s proposal COM (2013) 404 final of 11 June 2013 for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, are irrelevant, on the assumption that they are admissible, which the Commission disputes. Irrespective of any considerations relating to the status and scope of this proposal when the Commission adopted the contested decision, the decision clearly states that the provisions set out in the proposal are without prejudice to the rules on the right of access to documents provided for in Regulation No 1049/2001, as the Commission correctly points out.

2. The rebuttal of the general presumption and the overriding public interest invoked by the applicant

The rebuttal of the general presumption and the overriding public interest invoked by the applicant

| 59 | The application of a general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document in question by virtue of Article 4(2) of Regulation No 1049/2001 (judgments in Commission v Technische Glaswerke Ilmenau, cited in paragraph 32 above, EU:C:2010:376, paragraph 62, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 100). To that end, it is for the applicant to rely on specific circumstances to show that disclosure of the document concerned is justified (judgment in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 94). |
| --- | --- |

59

The application of a general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document in question by virtue of Article 4(2) of Regulation No 1049/2001 (judgments in Commission v Technische Glaswerke Ilmenau, cited in paragraph 32 above, EU:C:2010:376, paragraph 62, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 100). To that end, it is for the applicant to rely on specific circumstances to show that disclosure of the document concerned is justified (judgment in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 94).

Commission

Technische Glaswerke Ilmenau

Commission

EnBW

LPN and Finland

Commission

| 60 | However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission has to examine individually all the documents to which access is requested. Such a requirement would deprive that general presumption of its proper effect, which is to permit the Commission to reply to a global request in an equally global manner (judgments in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 68, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 101). |
| --- | --- |

60

However, the requirement to ascertain whether the general presumption in question actually applies cannot be interpreted as meaning that the Commission has to examine individually all the documents to which access is requested. Such a requirement would deprive that general presumption of its proper effect, which is to permit the Commission to reply to a global request in an equally global manner (judgments in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 68, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 101).

LPN and Finland

Commission

Commission

EnBW

| 61 | In the present case, it should be noted, in the first place, that the applicant did not argue in its action, nor does it claim to have argued before the Commission, that a specific individual document, within the set of documents to which the second request related, was not covered by the general presumption described in paragraphs 46 and 52 above. |
| --- | --- |

61

In the present case, it should be noted, in the first place, that the applicant did not argue in its action, nor does it claim to have argued before the Commission, that a specific individual document, within the set of documents to which the second request related, was not covered by the general presumption described in paragraphs 46 and 52 above.

| 62 | After essentially disputing the very principle of applying such a presumption in its application, in its reply the applicant merely contended that the presumption should be regarded as rebutted in respect of all of the documents in question for two reasons. First, the applicant asserted that it had not merely contemplated an action for damages, but had already brought such an action before the Landgericht Düsseldorf. Secondly, it submitted that the requested documents dated from more than five years before and were therefore too old to warrant protection. |
| --- | --- |

62

After essentially disputing the very principle of applying such a presumption in its application, in its reply the applicant merely contended that the presumption should be regarded as rebutted in respect of all of the documents in question for two reasons. First, the applicant asserted that it had not merely contemplated an action for damages, but had already brought such an action before the Landgericht Düsseldorf. Secondly, it submitted that the requested documents dated from more than five years before and were therefore too old to warrant protection.

| 63 | The first of these claims is not decisive, as SGSD points out. Although the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112, paragraphs 103 and 106), was delivered in a case in which the person requesting access to documents intended to bring an action for damages but had not yet done so, while the applicant in this case has already brought its action, this fact in itself does not mean that the general presumption invoked by the Commission does not apply to one or other of the documents in question in this case. As regards the second claim, which is very general in nature, it should be recalled that Article 4(7) of Regulation No 1049/2001 provides that the exceptions laid down in that regulation may apply for a period of thirty years and possibly beyond that period if necessary. The fact that the documents requested by the applicant are more than five years old is not, in itself, capable of rebutting the general presumption invoked by the Commission either (see, to that effect, judgment in Commission v Éditions Odile Jacob, cited in paragraph 40 above, EU:C:2012:393, paragraphs 124 and 125). |
| --- | --- |

63

The first of these claims is not decisive, as SGSD points out. Although the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112, paragraphs 103 and 106), was delivered in a case in which the person requesting access to documents intended to bring an action for damages but had not yet done so, while the applicant in this case has already brought its action, this fact in itself does not mean that the general presumption invoked by the Commission does not apply to one or other of the documents in question in this case. As regards the second claim, which is very general in nature, it should be recalled that Article 4(7) of Regulation No 1049/2001 provides that the exceptions laid down in that regulation may apply for a period of thirty years and possibly beyond that period if necessary. The fact that the documents requested by the applicant are more than five years old is not, in itself, capable of rebutting the general presumption invoked by the Commission either (see, to that effect, judgment in Commission v Éditions Odile Jacob, cited in paragraph 40 above, EU:C:2012:393, paragraphs 124 and 125).

Commission

EnBW

Commission

Éditions Odile Jacob

| 64 | In the absence of other evidence in the action capable of rebutting the general presumption on which the contested decision is based, the applicant cannot claim that the Commission ought to have carried out a specific and individual examination of the documents it requested (see, to that effect, judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 128). |
| --- | --- |

64

In the absence of other evidence in the action capable of rebutting the general presumption on which the contested decision is based, the applicant cannot claim that the Commission ought to have carried out a specific and individual examination of the documents it requested (see, to that effect, judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 128).

Commission

EnBW

| 65 | In the second place, the applicant none the less asserts that the Commission committed an error of law or of assessment by failing to take account of the overriding public interest in allowing the victims of anticompetitive practices to exercise their right to compensation and, after the specific balancing of interests to be carried out in the present case between this overriding public interest and the interest protected by each of the exceptions relied on in the contested decision, to disclose to the applicant the documents in the file of Case COMP/39.125 which it needed so that it could actually exercise its right. In its reply, the applicant also states, in essence, that it did everything in its power to demonstrate the need to secure the 3948 documents identified in the second request and, at the very least, the 2425 documents among them deemed to be ‘relevant’, in the light of the information in its possession and, in particular, the non-confidential version of the table of contents which the Commission disclosed in response to the first request. |
| --- | --- |

65

In the second place, the applicant none the less asserts that the Commission committed an error of law or of assessment by failing to take account of the overriding public interest in allowing the victims of anticompetitive practices to exercise their right to compensation and, after the specific balancing of interests to be carried out in the present case between this overriding public interest and the interest protected by each of the exceptions relied on in the contested decision, to disclose to the applicant the documents in the file of Case COMP/39.125 which it needed so that it could actually exercise its right. In its reply, the applicant also states, in essence, that it did everything in its power to demonstrate the need to secure the 3948 documents identified in the second request and, at the very least, the 2425 documents among them deemed to be ‘relevant’, in the light of the information in its possession and, in particular, the non-confidential version of the table of contents which the Commission disclosed in response to the first request.

| 66 | It should be observed that all persons are entitled to claim compensation for the loss caused to them by a breach of the EU rules on competition. Such a right strengthens the working of those rules, since it discourages cartels and other, often covert, practices capable of restricting or distorting competition, thereby making a significant contribution to the maintenance of effective competition in the European Union (judgments of 20 September 2001 in Courage and Crehan, C‐453/99, ECR, EU:C:2001:465, paragraphs 26 and 27, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 104). |
| --- | --- |

66

It should be observed that all persons are entitled to claim compensation for the loss caused to them by a breach of the EU rules on competition. Such a right strengthens the working of those rules, since it discourages cartels and other, often covert, practices capable of restricting or distorting competition, thereby making a significant contribution to the maintenance of effective competition in the European Union (judgments of 20 September 2001 in Courage and Crehan, C‐453/99, ECR, EU:C:2001:465, paragraphs 26 and 27, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 104).

Courage and Crehan

Commission

EnBW

| 67 | Nevertheless, such general considerations are not, as such, capable of prevailing over the reasons justifying a refusal to grant access to the documents in the file of a proceeding pursuant to the competition rules based on the fact that the documents are covered, in their entirety, by a general presumption that their disclosure would in principle undermine, in particular, the protection of the purpose of inspections and investigations (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 105). |
| --- | --- |

67

Nevertheless, such general considerations are not, as such, capable of prevailing over the reasons justifying a refusal to grant access to the documents in the file of a proceeding pursuant to the competition rules based on the fact that the documents are covered, in their entirety, by a general presumption that their disclosure would in principle undermine, in particular, the protection of the purpose of inspections and investigations (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 105).

Commission

EnBW

| 68 | In order to ensure the effective implementation of the right to compensation, there is no need for every document in the file of such a proceeding to be disclosed to the person requesting access to it under Regulation No 1049/2001 with a view to bringing an action for damages, as it is highly unlikely that the action will need to be based on all the evidence in the file relating to that proceeding (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 106; also see, to that effect, judgment of 6 June 2013 in Donau Chemie and Others, C‐536/11, ECR, EU:C:2013:366, paragraph 33). The same is true where the person requesting access to the documents in the file has already brought an action for damages, since it remains highly unlikely that the action will need to be based on the entire file, as the Commission pointed out in its rejoinder. |
| --- | --- |

68

In order to ensure the effective implementation of the right to compensation, there is no need for every document in the file of such a proceeding to be disclosed to the person requesting access to it under Regulation No 1049/2001 with a view to bringing an action for damages, as it is highly unlikely that the action will need to be based on all the evidence in the file relating to that proceeding (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 106; also see, to that effect, judgment of 6 June 2013 in Donau Chemie and Others, C‐536/11, ECR, EU:C:2013:366, paragraph 33). The same is true where the person requesting access to the documents in the file has already brought an action for damages, since it remains highly unlikely that the action will need to be based on the entire file, as the Commission pointed out in its rejoinder.

Commission

EnBW

Donau Chemie and Others

| 69 | It follows that any person seeking compensation for the loss he considers was caused to him by a breach of the EU rules on competition must establish that it is necessary for him to be granted access to documents in the Commission’s file, so that the Commission can weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favour of the protection of those documents, taking into account all the relevant factors in the case (judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 107, and Schenker v Commission, cited in paragraph 42 above, EU:T:2014:854, paragraph 95). |
| --- | --- |

69

It follows that any person seeking compensation for the loss he considers was caused to him by a breach of the EU rules on competition must establish that it is necessary for him to be granted access to documents in the Commission’s file, so that the Commission can weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and in favour of the protection of those documents, taking into account all the relevant factors in the case (judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 107, and Schenker v Commission, cited in paragraph 42 above, EU:T:2014:854, paragraph 95).

Commission

EnBW

Schenker

Commission

| 70 | Otherwise, the interest in obtaining compensation for the loss suffered as a result of a breach of the EU rules on competition cannot constitute an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001 (judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 108, and Schenker v Commission, cited in paragraph 42 above, EU:T:2014:854, paragraph 96). |
| --- | --- |

70

Otherwise, the interest in obtaining compensation for the loss suffered as a result of a breach of the EU rules on competition cannot constitute an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001 (judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 108, and Schenker v Commission, cited in paragraph 42 above, EU:T:2014:854, paragraph 96).

Commission

EnBW

Schenker

Commission

| 71 | In this case, as the applicant pointed out particularly in its reply and answers to the written questions of the Court, in its second request it identified 3948‘relevant’ or ‘possibly relevant’ documents in the context of its action before the Landgericht Düsseldorf, appending the numbers ‘1’ or ‘2’ respectively beside the references to these documents included in the non-confidential version of the table of contents of the file which the Commission had disclosed to it in response to the first request. Moreover, it made specific reference in the introduction to the request to eight ‘relevant’ or ‘possibly relevant’ documents among the 3948 documents covered by the second request. |
| --- | --- |

71

In this case, as the applicant pointed out particularly in its reply and answers to the written questions of the Court, in its second request it identified 3948‘relevant’ or ‘possibly relevant’ documents in the context of its action before the Landgericht Düsseldorf, appending the numbers ‘1’ or ‘2’ respectively beside the references to these documents included in the non-confidential version of the table of contents of the file which the Commission had disclosed to it in response to the first request. Moreover, it made specific reference in the introduction to the request to eight ‘relevant’ or ‘possibly relevant’ documents among the 3948 documents covered by the second request.

| 72 | However, in successive documents, it merely made general claims that these documents ‘were of interest to it’ and that it ‘had to inspect them to be able to substantiate [its] claim for damages’ since they ‘clearly contain[ed] information on the agreements and price increases agreed upon by the participants in the cartel [which was found to exist and was subject to penalties in the Carglass decision]’ and ‘it [was] necessary [for it] to have sight of that information to be able to prove and quantify the actual loss it [had] suffered’. |
| --- | --- |

72

However, in successive documents, it merely made general claims that these documents ‘were of interest to it’ and that it ‘had to inspect them to be able to substantiate [its] claim for damages’ since they ‘clearly contain[ed] information on the agreements and price increases agreed upon by the participants in the cartel [which was found to exist and was subject to penalties in the Carglass decision]’ and ‘it [was] necessary [for it] to have sight of that information to be able to prove and quantify the actual loss it [had] suffered’.

| 73 | By contrast, as the Commission correctly points out, the applicant did not explain why it needed these documents, even if only by setting out the specific factual or legal arguments which securing those documents might help it substantiate before the national court required to rule on its claims. |
| --- | --- |

73

By contrast, as the Commission correctly points out, the applicant did not explain why it needed these documents, even if only by setting out the specific factual or legal arguments which securing those documents might help it substantiate before the national court required to rule on its claims.

| 74 | None of the other arguments put forward by the applicant is capable of calling that assessment into question. |
| --- | --- |

74

None of the other arguments put forward by the applicant is capable of calling that assessment into question.

| 75 | The contention that it was impossible for the applicant to be any more specific than it had already been, given that the Commission had granted it only partial access to the table of contents of the file at the outset, is unconvincing in this case. Except for references to the ‘leniency documents’ produced by some of the parties to the proceeding and to the internal documents of the Commission, which were deleted en bloc, the Commission merely removed from the references to other documents in the file included in the table of contents specific information which, in its opinion, constituted personal data or commercially sensitive information. The Court considers that, in view of this targeted selection, the non-confidential version of the references to the documents in the file other than the ‘leniency documents’ and the internal documents of the Commission which were in the applicant’s possession when it submitted the second request permitted the interested party to put forward more specific and detailed reasons than those it had given to the Commission (see paragraphs 40 and 71 to 72 above) and, in this case, the reasons why it thought that one or other of the documents was necessary for the exercise of its right to compensation, for example by setting out, as indicated above, the specific factual or legal arguments which securing those documents might help it substantiate before the national court required to rule on its claims. |
| --- | --- |

75

The contention that it was impossible for the applicant to be any more specific than it had already been, given that the Commission had granted it only partial access to the table of contents of the file at the outset, is unconvincing in this case. Except for references to the ‘leniency documents’ produced by some of the parties to the proceeding and to the internal documents of the Commission, which were deleted en bloc, the Commission merely removed from the references to other documents in the file included in the table of contents specific information which, in its opinion, constituted personal data or commercially sensitive information. The Court considers that, in view of this targeted selection, the non-confidential version of the references to the documents in the file other than the ‘leniency documents’ and the internal documents of the Commission which were in the applicant’s possession when it submitted the second request permitted the interested party to put forward more specific and detailed reasons than those it had given to the Commission (see paragraphs 40 and 71 to 72 above) and, in this case, the reasons why it thought that one or other of the documents was necessary for the exercise of its right to compensation, for example by setting out, as indicated above, the specific factual or legal arguments which securing those documents might help it substantiate before the national court required to rule on its claims.

| 76 | Furthermore, it is indeed apparent from the contested decision that, ‘in [its] confirmatory application [, the applicant] not[ed] ... that there [were] no appropriate rules under German civil procedure law permitting the documents [in question] to be requested “inter partes”’ (third subparagraph of point 7 of the contested decision). However, this claim, which was last repeated at the hearing, was never expanded on, far less proven, by the applicant in the course of its action. The Court of Justice has already held that the need to access a set of documents included in the file of a proceeding pursuant to the competition rules could not be regarded as established where the requesting party stated that it was utterly dependent on the documents but did not demonstrate, at the very least, that it had no other way of obtaining that evidence (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 132; also see, to that effect, judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraphs 32 and 44). |
| --- | --- |

76

Furthermore, it is indeed apparent from the contested decision that, ‘in [its] confirmatory application [, the applicant] not[ed] ... that there [were] no appropriate rules under German civil procedure law permitting the documents [in question] to be requested “inter partes”’ (third subparagraph of point 7 of the contested decision). However, this claim, which was last repeated at the hearing, was never expanded on, far less proven, by the applicant in the course of its action. The Court of Justice has already held that the need to access a set of documents included in the file of a proceeding pursuant to the competition rules could not be regarded as established where the requesting party stated that it was utterly dependent on the documents but did not demonstrate, at the very least, that it had no other way of obtaining that evidence (judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 132; also see, to that effect, judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraphs 32 and 44).

inter partes

Commission

EnBW

Donau Chemie and Others

| 77 | In those circumstances, it cannot be considered, in this instance, that the Commission committed an error of law or of assessment by finding that, first, ‘on balance, the interest in the effective implementation of the competition rules was, in the present case, better served by maintaining the confidentiality of the documents in question’; secondly, ‘there [was] no overriding public interest in their disclosure within the meaning of Regulation No 1049/2001’; and thirdly, ‘in the present case, the prevailing interest [was] the protection of the purpose of investigations, as set out in the third indent of Article 4(2)’ of that regulation (sixth and seventh subparagraphs of point 7 of the contested decision). |
| --- | --- |

77

In those circumstances, it cannot be considered, in this instance, that the Commission committed an error of law or of assessment by finding that, first, ‘on balance, the interest in the effective implementation of the competition rules was, in the present case, better served by maintaining the confidentiality of the documents in question’; secondly, ‘there [was] no overriding public interest in their disclosure within the meaning of Regulation No 1049/2001’; and thirdly, ‘in the present case, the prevailing interest [was] the protection of the purpose of investigations, as set out in the third indent of Article 4(2)’ of that regulation (sixth and seventh subparagraphs of point 7 of the contested decision).

| 78 | Having regard to all of the preceding considerations, the present pleas in law must be dismissed in their entirety. |
| --- | --- |

78

Having regard to all of the preceding considerations, the present pleas in law must be dismissed in their entirety.

B – The fourth plea in law and the fifth plea in law in so far as it concerns the applicant’s first request

The fourth plea in law and the fifth plea in law in so far as it concerns the applicant’s first request

| 79 | By its fourth plea in law, the applicant contends, in essence, that the Commission wrongly refused to give it access to the complete version of the only document covered by the first request, namely the table of contents in the file of Case COMP/39.125. |
| --- | --- |

79

By its fourth plea in law, the applicant contends, in essence, that the Commission wrongly refused to give it access to the complete version of the only document covered by the first request, namely the table of contents in the file of Case COMP/39.125.

| 80 | In the first place, it claims that the very general and, in part, speculative explanations furnished by the Commission in the contested decision and in the decision of 7 March 2012 as regards the need not to jeopardise the effectiveness of its leniency programme and not to undermine the protection of the commercial interests of undertakings that have submitted an application under the programme in the context of Case COMP/39.125, as well as the protection of the purpose of inspections and investigations, do not, in themselves, justify a complete and absolute refusal to grant the applicant access to the references to the ‘leniency documents’ included in the table of contents. |
| --- | --- |

80

In the first place, it claims that the very general and, in part, speculative explanations furnished by the Commission in the contested decision and in the decision of 7 March 2012 as regards the need not to jeopardise the effectiveness of its leniency programme and not to undermine the protection of the commercial interests of undertakings that have submitted an application under the programme in the context of Case COMP/39.125, as well as the protection of the purpose of inspections and investigations, do not, in themselves, justify a complete and absolute refusal to grant the applicant access to the references to the ‘leniency documents’ included in the table of contents.

| 81 | In the second place, the applicant argues that the Commission wrongly refused access to information relating to the identity of natural persons included in the table of contents by invoking, in the abstract, the need not to undermine the protection of personal data, instead of explaining, individually and specifically, the reasons preventing each item of information in question from being disclosed. In any event, the applicant contends that it sufficiently demonstrated why it needed access to this information in order to exercise its right to compensation, in accordance with the public interest in victims of anticompetitive practices being able to secure compensation for their loss. |
| --- | --- |

81

In the second place, the applicant argues that the Commission wrongly refused access to information relating to the identity of natural persons included in the table of contents by invoking, in the abstract, the need not to undermine the protection of personal data, instead of explaining, individually and specifically, the reasons preventing each item of information in question from being disclosed. In any event, the applicant contends that it sufficiently demonstrated why it needed access to this information in order to exercise its right to compensation, in accordance with the public interest in victims of anticompetitive practices being able to secure compensation for their loss.

| 82 | In the third place, the Commission was wrong to refuse it access, without any individual and specific examination, to the names of third-party undertakings ‘operating in the lift and escalator sector’ mentioned in the table of contents, even though such a reference was clearly irrelevant and disclosure of that information was unlikely to undermine the commercial interests of the persons involved. |
| --- | --- |

82

In the third place, the Commission was wrong to refuse it access, without any individual and specific examination, to the names of third-party undertakings ‘operating in the lift and escalator sector’ mentioned in the table of contents, even though such a reference was clearly irrelevant and disclosure of that information was unlikely to undermine the commercial interests of the persons involved.

| 83 | In the fourth and last place, the Commission was wrong to refuse it access, on general and abstract grounds, to information relating to vehicle models, the names of car manufacturers and other commercially sensitive information included in the table of contents, even though such information was absolutely essential to enable it to exercise its right to compensation and even though this interest should prevail, on balance, over the other interests at stake. |
| --- | --- |

83

In the fourth and last place, the Commission was wrong to refuse it access, on general and abstract grounds, to information relating to vehicle models, the names of car manufacturers and other commercially sensitive information included in the table of contents, even though such information was absolutely essential to enable it to exercise its right to compensation and even though this interest should prevail, on balance, over the other interests at stake.

| 84 | By its fifth plea, the applicant asserts, in essence, that the Commission failed to comply with the requirement to state reasons set out in Article 296 TFEU by refusing the first request based on general reasoning that failed to take account of the specific content of the document in question, as demonstrated by the statement of reasons used to refuse disclosure of the names of third-party undertakings included in the table of contents. |
| --- | --- |

84

By its fifth plea, the applicant asserts, in essence, that the Commission failed to comply with the requirement to state reasons set out in Article 296 TFEU by refusing the first request based on general reasoning that failed to take account of the specific content of the document in question, as demonstrated by the statement of reasons used to refuse disclosure of the names of third-party undertakings included in the table of contents.

| 85 | The Commission, supported by SGSD, disputes all of those arguments. |
| --- | --- |

85

The Commission, supported by SGSD, disputes all of those arguments.

| 86 | It is appropriate to examine, first of all, the applicant’s arguments relating to the different types of information included in the table of contents to which the Commission refused to give the applicant access, namely, first, references to the ‘leniency documents’ (point 5.1 of the contested decision); secondly, the names of natural persons (point 5.2 of the contested decision); thirdly, the names of third-party undertakings (point 5.3 of the contested decision); and fourthly, other commercially sensitive information (point 5.4 of the contested decision). By contrast, it is not necessary to review the merits of the contested decision in so far as it refused to disclose to the applicant the references to internal documents of the Commission since, notwithstanding the heading of its fourth plea (see paragraph 22 above), the applicant does not rely on any specific arguments in that regard. The arguments relating to the existence of an overriding public interest, which the applicant expressly relies on only in relation to some of the types of information in question, will be examined thereafter. |
| --- | --- |

86

It is appropriate to examine, first of all, the applicant’s arguments relating to the different types of information included in the table of contents to which the Commission refused to give the applicant access, namely, first, references to the ‘leniency documents’ (point 5.1 of the contested decision); secondly, the names of natural persons (point 5.2 of the contested decision); thirdly, the names of third-party undertakings (point 5.3 of the contested decision); and fourthly, other commercially sensitive information (point 5.4 of the contested decision). By contrast, it is not necessary to review the merits of the contested decision in so far as it refused to disclose to the applicant the references to internal documents of the Commission since, notwithstanding the heading of its fourth plea (see paragraph 22 above), the applicant does not rely on any specific arguments in that regard. The arguments relating to the existence of an overriding public interest, which the applicant expressly relies on only in relation to some of the types of information in question, will be examined thereafter.

1. The general presumptions and the exceptions applied by the Commission

The general presumptions and the exceptions applied by the Commission

a) The refusal to grant access to references to the ‘leniency documents’

| 87 | In point 5.1 of the contested decision, the Commission stated that ‘[i]t is not possible, at this stage, to disclose the description of the leniency documents’ included in the table of contents ‘for the same reasons as those set forth in point 4.2 above, since the references to those documents provide information on their content which has to be treated as confidential’. In doing so, it referred to the reasoning which previously led it to refuse the applicant access to the set of documents to which the second request related, on the ground that this set of documents was covered by a general presumption that its disclosure would undermine the protection of the commercial interests of third parties and the purpose of inspections and investigations (see paragraph 8 above). |
| --- | --- |

87

In point 5.1 of the contested decision, the Commission stated that ‘[i]t is not possible, at this stage, to disclose the description of the leniency documents’ included in the table of contents ‘for the same reasons as those set forth in point 4.2 above, since the references to those documents provide information on their content which has to be treated as confidential’. In doing so, it referred to the reasoning which previously led it to refuse the applicant access to the set of documents to which the second request related, on the ground that this set of documents was covered by a general presumption that its disclosure would undermine the protection of the commercial interests of third parties and the purpose of inspections and investigations (see paragraph 8 above).

| 88 | In so far as the Commission submits, in its defence, that ‘leaving aside the applicability of [this] general presumption, [it] also explained in detail, in [the] decision [...] of 7 March 2012 and in [the contested decision], that the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001 applied’, it should be noted from the outset that this assertion is only partially correct. |
| --- | --- |

88

In so far as the Commission submits, in its defence, that ‘leaving aside the applicability of [this] general presumption, [it] also explained in detail, in [the] decision [...] of 7 March 2012 and in [the contested decision], that the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001 applied’, it should be noted from the outset that this assertion is only partially correct.

| 89 | No such examination is in any way apparent from the contested decision. On the contrary, after considering the case-law of the Court of Justice acknowledging that it was open to the Commission to apply general presumptions in order to deal with requests relating to sets of documents contained in merger or State aid files (first to fourth subparagraphs of point 4.2 of the contested decision), the Commission merely explained why, in its opinion, that case-law also applied to files involving anticompetitive practices (fifth to twelfth subparagraphs of point 4.2 of the contested decision) and, in particular, to ‘leniency documents’ contained therein (eighth to tenth subparagraphs of point 4.2 of the contested decision) and, moreover, was capable of being applied to references to such documents included in the table of contents of those files (point 5.1 of the contested decision). |
| --- | --- |

89

No such examination is in any way apparent from the contested decision. On the contrary, after considering the case-law of the Court of Justice acknowledging that it was open to the Commission to apply general presumptions in order to deal with requests relating to sets of documents contained in merger or State aid files (first to fourth subparagraphs of point 4.2 of the contested decision), the Commission merely explained why, in its opinion, that case-law also applied to files involving anticompetitive practices (fifth to twelfth subparagraphs of point 4.2 of the contested decision) and, in particular, to ‘leniency documents’ contained therein (eighth to tenth subparagraphs of point 4.2 of the contested decision) and, moreover, was capable of being applied to references to such documents included in the table of contents of those files (point 5.1 of the contested decision).

| 90 | In those circumstances, the reasons for the decision of 7 March 2012, in which the Commission’s services explained in more detail why, in their opinion and at that provisional stage of dealing with the first request, such references should not be disclosed, may only be taken into account for the purpose of assessing the lawfulness of the contested decision in so far as they clarify the reasoning actually relied on, in the end, by that institution (see, to that effect, judgment of 6 April 2000 in Kuijer v Council, T‐188/98, ECR, EU:T:2000:101, paragraph 44), reasoning which is based, as the Court has just pointed out, on a general presumption. |
| --- | --- |

90

In those circumstances, the reasons for the decision of 7 March 2012, in which the Commission’s services explained in more detail why, in their opinion and at that provisional stage of dealing with the first request, such references should not be disclosed, may only be taken into account for the purpose of assessing the lawfulness of the contested decision in so far as they clarify the reasoning actually relied on, in the end, by that institution (see, to that effect, judgment of 6 April 2000 in Kuijer v Council, T‐188/98, ECR, EU:T:2000:101, paragraph 44), reasoning which is based, as the Court has just pointed out, on a general presumption.

Kuijer

Council

| 91 | In view of the arguments put forward by the applicant to challenge this reasoning, it is necessary, in the first place, to decide whether the Commission was fully entitled to refuse access to the information in question by applying a general presumption, as it did in the contested decision. Only if the answer is in the affirmative will it be necessary, in the second place, to consider whether Commission was right to apply the general presumption on which it relied in this case. |
| --- | --- |

91

In view of the arguments put forward by the applicant to challenge this reasoning, it is necessary, in the first place, to decide whether the Commission was fully entitled to refuse access to the information in question by applying a general presumption, as it did in the contested decision. Only if the answer is in the affirmative will it be necessary, in the second place, to consider whether Commission was right to apply the general presumption on which it relied in this case.

The merits of applying a general presumption

| 92 | Where an institution is asked to disclose a document, it must assess in each individual case whether that document falls within the exceptions, set out in Article 4 of Regulation No 1049/2001, to the right of public access to documents of the institutions (judgment in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 35). |
| --- | --- |

92

Where an institution is asked to disclose a document, it must assess in each individual case whether that document falls within the exceptions, set out in Article 4 of Regulation No 1049/2001, to the right of public access to documents of the institutions (judgment in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraph 35).

Sweden and Turco

Council

| 93 | Since those exceptions must be interpreted and applied strictly, the institution to which the request is addressed must, in order to justify a refusal to grant access to the document in question, provide explanations as to how access to that document could specifically and actually undermine the interest protected by one or other of the exceptions laid down in Article 4 of Regulation No 1049/2001. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see the case-law cited in paragraphs 35 and 36 above). |
| --- | --- |

93

Since those exceptions must be interpreted and applied strictly, the institution to which the request is addressed must, in order to justify a refusal to grant access to the document in question, provide explanations as to how access to that document could specifically and actually undermine the interest protected by one or other of the exceptions laid down in Article 4 of Regulation No 1049/2001. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (see the case-law cited in paragraphs 35 and 36 above).

| 94 | In the course of such an exercise, it is open to the institution concerned to base its decision on a general presumption, even though the request at issue covers only a single document. However, in that kind of situation, where the application of a general presumption is not intended to make it possible to deal with a global request in global manner, the Court of Justice has held that it is a matter for the institution seeking to apply the presumption to establish whether the general considerations normally applicable to a particular type of document are in fact applicable to the document which it has been asked to disclose (judgment in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraphs 50 and 57; also see, to that effect, judgment in Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraphs 72 and 73). |
| --- | --- |

94

In the course of such an exercise, it is open to the institution concerned to base its decision on a general presumption, even though the request at issue covers only a single document. However, in that kind of situation, where the application of a general presumption is not intended to make it possible to deal with a global request in global manner, the Court of Justice has held that it is a matter for the institution seeking to apply the presumption to establish whether the general considerations normally applicable to a particular type of document are in fact applicable to the document which it has been asked to disclose (judgment in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraphs 50 and 57; also see, to that effect, judgment in Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraphs 72 and 73).

Sweden and Turco

Council

Council

Access Info Europe

| 95 | In the present case, it follows that, in contrast to what the applicant submits in its application, it was open to the Commission to rely on a general presumption in order to decide, in point 5.1 of the contested decision, to refuse the first request not in its entirety, but in so far as it related to a category of information which, in its opinion, fell within the exceptions listed in the first and third indents of Article 4(2) of Regulation No 1049/2001. |
| --- | --- |

95

In the present case, it follows that, in contrast to what the applicant submits in its application, it was open to the Commission to rely on a general presumption in order to decide, in point 5.1 of the contested decision, to refuse the first request not in its entirety, but in so far as it related to a category of information which, in its opinion, fell within the exceptions listed in the first and third indents of Article 4(2) of Regulation No 1049/2001.

| 96 | However, the Commission is not entitled to claim, as it does in its defence, that ‘the table of contents forms part of the file in the case [COMP/39.125] and is therefore covered by the general presumption’ of ‘inaccessibility’ recognised by the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112). |
| --- | --- |

96

However, the Commission is not entitled to claim, as it does in its defence, that ‘the table of contents forms part of the file in the case [COMP/39.125] and is therefore covered by the general presumption’ of ‘inaccessibility’ recognised by the judgment in Commission v EnBW, cited in paragraph 12 above (EU:C:2014:112).

Commission

EnBW

| 97 | The Court of Justice did not hold in that judgment that ‘the entire’ file of a proceeding pursuant to the competition rules is covered by a ‘general presumption of inaccessibility’, as the Commission itself states in its response to the applicant’s first group of pleas (see paragraph 40 above), but only that an institution to which a request is addressed relating to ‘a set’ of documents included in such a file may apply a general presumption in order to deal with that global request appropriately. Furthermore, the case-law of the Court of Justice makes it clear that the institutions of the European Union were recognised as having the right to apply such a general presumption to enable them to deal with requests covering not just one document, but a set of documents (judgment in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraphs 47 and 48). |
| --- | --- |

97

The Court of Justice did not hold in that judgment that ‘the entire’ file of a proceeding pursuant to the competition rules is covered by a ‘general presumption of inaccessibility’, as the Commission itself states in its response to the applicant’s first group of pleas (see paragraph 40 above), but only that an institution to which a request is addressed relating to ‘a set’ of documents included in such a file may apply a general presumption in order to deal with that global request appropriately. Furthermore, the case-law of the Court of Justice makes it clear that the institutions of the European Union were recognised as having the right to apply such a general presumption to enable them to deal with requests covering not just one document, but a set of documents (judgment in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraphs 47 and 48).

LPN and Finland

Commission

| 98 | The applicant’s first request covered not a set of documents, but a single document. In addition, the Commission does not claim that this request was the result of action taken to split artificially a request covering a set of documents into as many individual requests. Moreover, it would have no grounds for doing so in the present case (see paragraphs 3 to 5 above). |
| --- | --- |

98

The applicant’s first request covered not a set of documents, but a single document. In addition, the Commission does not claim that this request was the result of action taken to split artificially a request covering a set of documents into as many individual requests. Moreover, it would have no grounds for doing so in the present case (see paragraphs 3 to 5 above).

The merits of applying the general presumption invoked in the present case

| 99 | As the Court has just pointed out (see paragraph 94 above), since the Commission chose to apply a general presumption in order to refuse the applicant’s first request in so far as it related to references to the ‘leniency documents’ included in the only document covered by the request, it was for the Commission to base its decision on general considerations capable of being regarded as normally applicable to that section of the table of contents of the file of a proceeding pursuant to the competition rules and to check that those considerations were in fact applicable in this instance. |
| --- | --- |

99

As the Court has just pointed out (see paragraph 94 above), since the Commission chose to apply a general presumption in order to refuse the applicant’s first request in so far as it related to references to the ‘leniency documents’ included in the only document covered by the request, it was for the Commission to base its decision on general considerations capable of being regarded as normally applicable to that section of the table of contents of the file of a proceeding pursuant to the competition rules and to check that those considerations were in fact applicable in this instance.

| 100 | This requirement does not necessarily mean that the Commission had to carry out a specific assessment of the document in question (judgment in Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraph 73). Moreover, the obligation imposed on the Commission to check that the general presumption on which it intends to rely in order to deal with a request relating to a set of documents actually applies cannot be interpreted as meaning that it must examine individually all of the documents to which access is requested (see paragraph 60 above). |
| --- | --- |

100

This requirement does not necessarily mean that the Commission had to carry out a specific assessment of the document in question (judgment in Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraph 73). Moreover, the obligation imposed on the Commission to check that the general presumption on which it intends to rely in order to deal with a request relating to a set of documents actually applies cannot be interpreted as meaning that it must examine individually all of the documents to which access is requested (see paragraph 60 above).

Council

Access Info Europe

| 101 | However, it was still necessary for the Commission to substantiate its refusal to give access to the requisite factual and legal standard, on the basis of a reasonably foreseeable risk of specific and actual harm to one or more of the interests protected by the exceptions laid down in Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraphs 49 and 50, and Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraphs 31, 36 to 38, 54 and 74). |
| --- | --- |

101

However, it was still necessary for the Commission to substantiate its refusal to give access to the requisite factual and legal standard, on the basis of a reasonably foreseeable risk of specific and actual harm to one or more of the interests protected by the exceptions laid down in Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments in Sweden and Turco v Council, cited in paragraph 36 above, EU:C:2008:374, paragraphs 49 and 50, and Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraphs 31, 36 to 38, 54 and 74).

Sweden and Turco

Council

Council

Access Info Europe

| 102 | In the present case, it is appropriate, in the first place, to make five observations in this respect. |
| --- | --- |

102

In the present case, it is appropriate, in the first place, to make five observations in this respect.

| 103 | First, it is common ground that, in the context of the first request, as reiterated in the confirmatory application of 23 March 2012, the applicant did not seek access to the ‘leniency documents’ included in the file of Case COMP/39.125 in the strict sense. It only sought disclosure of the references to these documents which appeared in the complete version of the table of contents of the file, but not in the non-confidential version sent by the Commission on 7 March 2012 (see paragraphs 3, 5 and 7 above). It is apparent from reviewing the complete version of this document, which was sent in response to the measure of inquiry ordered by the Court (see paragraph 15 above), that there are essentially two types of references. The first type covers the dates on which the undertakings that submitted an application under the leniency programme sent the ‘leniency documents’ at issue to the Commission, while the second type covers the respective headings of the documents. |
| --- | --- |

103

First, it is common ground that, in the context of the first request, as reiterated in the confirmatory application of 23 March 2012, the applicant did not seek access to the ‘leniency documents’ included in the file of Case COMP/39.125 in the strict sense. It only sought disclosure of the references to these documents which appeared in the complete version of the table of contents of the file, but not in the non-confidential version sent by the Commission on 7 March 2012 (see paragraphs 3, 5 and 7 above). It is apparent from reviewing the complete version of this document, which was sent in response to the measure of inquiry ordered by the Court (see paragraph 15 above), that there are essentially two types of references. The first type covers the dates on which the undertakings that submitted an application under the leniency programme sent the ‘leniency documents’ at issue to the Commission, while the second type covers the respective headings of the documents.

| 104 | Secondly, the Commission refused to disclose not only all of these references as a whole, but also each reference in its entirety. The way in which it dealt with this category of references therefore differs from its handling of the references to other types of documents included in the table of contents which form the subject-matter of these pleas (see paragraph 86 above). In respect of those references, the Commission simply removed, in a targeted manner, specific information on the ground that, in its opinion, such information constituted personal data (such as the names of natural persons) or commercially sensitive information (such as the names of third-party undertakings or references to vehicle models), granting access to the remainder of the references (see paragraph 75 above). |
| --- | --- |

104

Secondly, the Commission refused to disclose not only all of these references as a whole, but also each reference in its entirety. The way in which it dealt with this category of references therefore differs from its handling of the references to other types of documents included in the table of contents which form the subject-matter of these pleas (see paragraph 86 above). In respect of those references, the Commission simply removed, in a targeted manner, specific information on the ground that, in its opinion, such information constituted personal data (such as the names of natural persons) or commercially sensitive information (such as the names of third-party undertakings or references to vehicle models), granting access to the remainder of the references (see paragraph 75 above).

| 105 | Thirdly, it is apparent from reading point 5.1 of the contested decision in conjunction with point 4.2 to which it refers that the complete removal of references to the ‘leniency documents’ from the non-confidential version of the table of contents of the file in Case COMP/39.125, which was sent to the applicant, is driven by general considerations according to which disclosure of such references ‘could jeopardise the effectiveness’ of the Commission’s leniency programme. In the contested decision, the Commission states that (i) undertakings which have submitted an application under its leniency programme expect the information they provide to the Commission in connection with their application to be treated as confidential; (ii) these expectations are worthy of protection; and, (iii) the effectiveness of leniency programmes, which are useful tools to detect and prevent infringements of the competition rules, could be jeopardised if the information at issue was made public (eighth to tenth subparagraphs of point 4.2 of the contested decision). |
| --- | --- |

105

Thirdly, it is apparent from reading point 5.1 of the contested decision in conjunction with point 4.2 to which it refers that the complete removal of references to the ‘leniency documents’ from the non-confidential version of the table of contents of the file in Case COMP/39.125, which was sent to the applicant, is driven by general considerations according to which disclosure of such references ‘could jeopardise the effectiveness’ of the Commission’s leniency programme. In the contested decision, the Commission states that (i) undertakings which have submitted an application under its leniency programme expect the information they provide to the Commission in connection with their application to be treated as confidential; (ii) these expectations are worthy of protection; and, (iii) the effectiveness of leniency programmes, which are useful tools to detect and prevent infringements of the competition rules, could be jeopardised if the information at issue was made public (eighth to tenth subparagraphs of point 4.2 of the contested decision).

| 106 | Fourthly, the Commission clarifies the meaning and extent of these general considerations in its defence, referring back to the earlier analysis conducted by its services in the decision of 7 March 2012. It explains that (i) ‘because of the description of the correspondence from the leniency applicants, disclosure of the table of contents would automatically reveal the nature and extent of [their] involvement’; (ii) ‘some keywords in the table of contents already disclose the identity and cooperation of natural persons both before and during the administrative procedure’; (iii) ‘the description and dates of some of the documents mentioned in the table of contents already gives an indication of their content, particularly information concerning the commercial dealings of the leniency applicants, pricing, cost structures, market shares or other commercially sensitive information’; and (iv) ‘the interest ... of the leniency applicants in protecting the confidentiality of all information to their detriment’ is ‘particularly worthy of protection’. The Commission concludes that ‘disclosure of such information is contrary to the protection of the commercial interests of the leniency applicants’ and that the ‘serious harm’ that such disclosure is likely to ‘cause’ to those interests might ‘deter them from cooperating in future investigations’, even though ‘the level of detail in the table of contents [may not] obviously be the same as in the [leniency] documents’ in the strict sense. |
| --- | --- |

106

Fourthly, the Commission clarifies the meaning and extent of these general considerations in its defence, referring back to the earlier analysis conducted by its services in the decision of 7 March 2012. It explains that (i) ‘because of the description of the correspondence from the leniency applicants, disclosure of the table of contents would automatically reveal the nature and extent of [their] involvement’; (ii) ‘some keywords in the table of contents already disclose the identity and cooperation of natural persons both before and during the administrative procedure’; (iii) ‘the description and dates of some of the documents mentioned in the table of contents already gives an indication of their content, particularly information concerning the commercial dealings of the leniency applicants, pricing, cost structures, market shares or other commercially sensitive information’; and (iv) ‘the interest ... of the leniency applicants in protecting the confidentiality of all information to their detriment’ is ‘particularly worthy of protection’. The Commission concludes that ‘disclosure of such information is contrary to the protection of the commercial interests of the leniency applicants’ and that the ‘serious harm’ that such disclosure is likely to ‘cause’ to those interests might ‘deter them from cooperating in future investigations’, even though ‘the level of detail in the table of contents [may not] obviously be the same as in the [leniency] documents’ in the strict sense.

| 107 | Fifthly, it is apparent from the structure of point 4.2 of the contested decision as a whole that these general considerations led the Commission to presume, in a general way, that disclosing references to the ‘leniency documents’ included in the table of contents requested by the applicant would, in the long run, undermine both the protection of the purpose of its inspections and investigations and the protection of the commercial interests of the parties to the proceeding. |
| --- | --- |

107

Fifthly, it is apparent from the structure of point 4.2 of the contested decision as a whole that these general considerations led the Commission to presume, in a general way, that disclosing references to the ‘leniency documents’ included in the table of contents requested by the applicant would, in the long run, undermine both the protection of the purpose of its inspections and investigations and the protection of the commercial interests of the parties to the proceeding.

| 108 | In order to contest the merits of these grounds, the applicant essentially claims, in paragraphs 128 to 141 of the application, that the Commission argued its case as if the first request related to the ‘leniency documents’ in the strict sense rather than mere references to such documents included in a table of contents, and that the general and speculative considerations relied on in the contested decision as to the need not to jeopardise the leniency programme did not justify the complete refusal to grant access to the references which is under challenge here. |
| --- | --- |

108

In order to contest the merits of these grounds, the applicant essentially claims, in paragraphs 128 to 141 of the application, that the Commission argued its case as if the first request related to the ‘leniency documents’ in the strict sense rather than mere references to such documents included in a table of contents, and that the general and speculative considerations relied on in the contested decision as to the need not to jeopardise the leniency programme did not justify the complete refusal to grant access to the references which is under challenge here.

| 109 | It is appropriate, in the second place, to note that this line of argument is in part well founded. |
| --- | --- |

109

It is appropriate, in the second place, to note that this line of argument is in part well founded.

| 110 | First, it must be stated that neither the wording of point 5.1 of the contested decision, nor that of point 4.2 to which it refers, nor even that of the decision of 7 March 2012, considered in isolation or as a whole, justifies the completeness of the refusal set out in the contested decision. |
| --- | --- |

110

First, it must be stated that neither the wording of point 5.1 of the contested decision, nor that of point 4.2 to which it refers, nor even that of the decision of 7 March 2012, considered in isolation or as a whole, justifies the completeness of the refusal set out in the contested decision.

| 111 | Indeed, in point 5.1 of the contested decision, the Commission merely states that ‘the references [to the leniency] documents [included in the table of contents of the file in Case COMP/39.125] provide information on the content of these documents which must be treated as confidential’. In the eighth and ninth subparagraphs of point 4.2, the Commission sets out the considerations that led it to presume, in a general way, that disclosure of the ‘leniency documents’ included in the file of some proceedings pursuant to the competition rules ‘could jeopardise the effectiveness’ of its leniency programme and, in consequence, undermine the protection of the commercial interests of the parties to these proceedings as well as the protection of the purpose of its inspections and investigations (see paragraphs 87 and 105 above). |
| --- | --- |

111

Indeed, in point 5.1 of the contested decision, the Commission merely states that ‘the references [to the leniency] documents [included in the table of contents of the file in Case COMP/39.125] provide information on the content of these documents which must be treated as confidential’. In the eighth and ninth subparagraphs of point 4.2, the Commission sets out the considerations that led it to presume, in a general way, that disclosure of the ‘leniency documents’ included in the file of some proceedings pursuant to the competition rules ‘could jeopardise the effectiveness’ of its leniency programme and, in consequence, undermine the protection of the commercial interests of the parties to these proceedings as well as the protection of the purpose of its inspections and investigations (see paragraphs 87 and 105 above).

| 112 | As the Commission confirms in its defence, by relying on the decision of 7 March 2012, the combination of these two sets of considerations is to be interpreted, as the applicant did in its application, as meaning that it was appropriate, in the present case, to presume, in a general way, that disclosure of the references to the ‘leniency documents’ included in the table of contents could jeopardise the effectiveness of the Commission’s leniency programme and, in consequence, undermine the commercial interests of the parties to the proceeding concerned as well as the purpose of the inspections and investigations connected to that proceeding, since — and in so far as — such disclosure would reveal to a third party ‘confidential information’ contained in the references or in the ‘leniency documents’ to which the references related. Specifically, the Commission considered information on the cooperation of undertakings which had submitted an application under the leniency programme and commercially sensitive data collected by its services in that context to be confidential (see paragraphs 106 and 107 above). |
| --- | --- |

112

As the Commission confirms in its defence, by relying on the decision of 7 March 2012, the combination of these two sets of considerations is to be interpreted, as the applicant did in its application, as meaning that it was appropriate, in the present case, to presume, in a general way, that disclosure of the references to the ‘leniency documents’ included in the table of contents could jeopardise the effectiveness of the Commission’s leniency programme and, in consequence, undermine the commercial interests of the parties to the proceeding concerned as well as the purpose of the inspections and investigations connected to that proceeding, since — and in so far as — such disclosure would reveal to a third party ‘confidential information’ contained in the references or in the ‘leniency documents’ to which the references related. Specifically, the Commission considered information on the cooperation of undertakings which had submitted an application under the leniency programme and commercially sensitive data collected by its services in that context to be confidential (see paragraphs 106 and 107 above).

| 113 | Even if it is conceded that the Commission could (i) treat the different types of documents in the file classified as ‘leniency documents’ in the contested decision in the same way, in the light of their nature or content, and (ii) presume, in a general way, that disclosure of these documents could jeopardise the effectiveness of its leniency programme and, in consequence, undermine the protection of the commercial interests of third parties as well as the protection of the purpose of its inspections and investigations, such reasoning only justifies, according to the very wording of the contested decision, a refusal to disclose that is limited to ‘information on the content of these documents which must be treated as confidential’. |
| --- | --- |

113

Even if it is conceded that the Commission could (i) treat the different types of documents in the file classified as ‘leniency documents’ in the contested decision in the same way, in the light of their nature or content, and (ii) presume, in a general way, that disclosure of these documents could jeopardise the effectiveness of its leniency programme and, in consequence, undermine the protection of the commercial interests of third parties as well as the protection of the purpose of its inspections and investigations, such reasoning only justifies, according to the very wording of the contested decision, a refusal to disclose that is limited to ‘information on the content of these documents which must be treated as confidential’.

| 114 | However, it does not justify removing en bloc all of the references containing such confidential information, including their most neutral or insignificant aspects, in contrast to the precise selection made by the Commission as regards the other types of references included in the table of contents which form the subject-matter of these pleas (see paragraph 104 above). |
| --- | --- |

114

However, it does not justify removing en bloc all of the references containing such confidential information, including their most neutral or insignificant aspects, in contrast to the precise selection made by the Commission as regards the other types of references included in the table of contents which form the subject-matter of these pleas (see paragraph 104 above).

| 115 | In other words, the general considerations relied on by the Commission may not be regarded, according to the very wording of the contested decision, as normally and actually applicable to all of the references in question. Therefore, they are not capable of justifying a complete refusal to disclose, but rather, at best, a partial refusal based on Article 4(6) of Regulation No 1049/2001 limited to what is necessary and proportionate in order to protect information which is deserving of protection (see, to that effect and by analogy, judgments of 6 December 2001 in Council v Hautala, C‐353/99 P, ECR, EU:C:2001:661, paragraphs 27 to 29, and 25 April 2007WWF European Policy Programme v Council, T‐264/04, ECR, EU:T:2007:114, paragraph 50). |
| --- | --- |

115

In other words, the general considerations relied on by the Commission may not be regarded, according to the very wording of the contested decision, as normally and actually applicable to all of the references in question. Therefore, they are not capable of justifying a complete refusal to disclose, but rather, at best, a partial refusal based on Article 4(6) of Regulation No 1049/2001 limited to what is necessary and proportionate in order to protect information which is deserving of protection (see, to that effect and by analogy, judgments of 6 December 2001 in Council v Hautala, C‐353/99 P, ECR, EU:C:2001:661, paragraphs 27 to 29, and 25 April 2007WWF European Policy Programme v Council, T‐264/04, ECR, EU:T:2007:114, paragraph 50).

Council

Hautala

WWF European Policy Programme

Council

| 116 | This assessment is not called into question by the fact that the general presumption on which the Commission may rely in order to deal with, in a global way, requests relating to a set of documents in the file of a proceeding pursuant to the competition rules means that these documents fall outside the scope of any obligation to disclose their content, even in part (see paragraph 42 above). It is clearly apparent from the case-law that it is where an institution applies a general presumption to deal with a request relating to a set of documents, not a single document, that this is the consequence of taking such action (judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 134, and Commission v Éditions Odile Jacob, cited in paragraph 40 above, EU:C:2012:393, paragraph 133). By contrast, it is not apparent from the case-law that, whilst attaching this consequence to the application of a general presumption in the specific case at hand, the Court of Justice sought to call into question the case-law of a more general scope considered in paragraph 115 above. Moreover, the Court of Justice has held that, even in this specific situation, the institution concerned is obliged to disclose all or part of the documents covered by the request where it finds that the characteristics of the corresponding proceeding so permit (judgment in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 67). Lastly, in the light of the requirement to limit refusals to grant access to what is necessary and proportionate in order to protect information which is deserving of protection, there is even less reason to accept a general refusal to disclose in the circumstances of this case, because it makes the effective exercise of the right to compensation which the applicant enjoys under the Treaty in practice impossible or at the very least excessively difficult (see paragraphs 130 to 134 below). |
| --- | --- |

116

This assessment is not called into question by the fact that the general presumption on which the Commission may rely in order to deal with, in a global way, requests relating to a set of documents in the file of a proceeding pursuant to the competition rules means that these documents fall outside the scope of any obligation to disclose their content, even in part (see paragraph 42 above). It is clearly apparent from the case-law that it is where an institution applies a general presumption to deal with a request relating to a set of documents, not a single document, that this is the consequence of taking such action (judgments in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 134, and Commission v Éditions Odile Jacob, cited in paragraph 40 above, EU:C:2012:393, paragraph 133). By contrast, it is not apparent from the case-law that, whilst attaching this consequence to the application of a general presumption in the specific case at hand, the Court of Justice sought to call into question the case-law of a more general scope considered in paragraph 115 above. Moreover, the Court of Justice has held that, even in this specific situation, the institution concerned is obliged to disclose all or part of the documents covered by the request where it finds that the characteristics of the corresponding proceeding so permit (judgment in LPN and Finland v Commission, cited in paragraph 34 above, EU:C:2013:738, paragraph 67). Lastly, in the light of the requirement to limit refusals to grant access to what is necessary and proportionate in order to protect information which is deserving of protection, there is even less reason to accept a general refusal to disclose in the circumstances of this case, because it makes the effective exercise of the right to compensation which the applicant enjoys under the Treaty in practice impossible or at the very least excessively difficult (see paragraphs 130 to 134 below).

Commission

EnBW

Commission

Éditions Odile Jacob

LPN and Finland

Commission

| 117 | Secondly, the absolute nature of the Commission’s refusal to disclose the references in question to the applicant does not seem to be substantiated to any higher factual and legal standard than the completeness of such refusal, in the light of the considerations on which the refusal is based. |
| --- | --- |

117

Secondly, the absolute nature of the Commission’s refusal to disclose the references in question to the applicant does not seem to be substantiated to any higher factual and legal standard than the completeness of such refusal, in the light of the considerations on which the refusal is based.

| 118 | It is true that the Commission was able to take the view, in essence, that disclosure of these references ‘could undermine’ the effectiveness of its leniency programme, in the same way as disclosure of the ‘leniency documents’ in the strict sense, in so far as such disclosure may result in third parties becoming aware of commercially sensitive information or confidential information relating to the cooperation of the parties contained in the documents. As the EU judicature has already held, leniency programmes are useful tools to uncover and bring an end to infringements of the competition rules, thereby contributing to the effective application of Articles 101 and 102 TFEU. Furthermore, the effectiveness of these programmes could be compromised if documents relating to leniency proceedings were disclosed to persons wishing to bring an action for damages. The view can reasonably be taken that the prospect of such disclosure would deter persons involved in an infringement of the competition rules from having recourse to such programmes (judgments of 14 June 2011 in Pfleiderer, C‐360/09, ECR, EU:C:2011:389, paragraph 26, and Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 42). Although this case-law concerns leniency programmes established by national competition authorities, the same reasoning may be applied, by analogy, to the leniency programme of the Commission (see, to that effect, judgment of Netherlands v Commission, cited in paragraph 39 above, EU:T:2013:480, paragraph 41, and opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraphs 68 and 69), as the Commission indeed argued in its defence. |
| --- | --- |

118

It is true that the Commission was able to take the view, in essence, that disclosure of these references ‘could undermine’ the effectiveness of its leniency programme, in the same way as disclosure of the ‘leniency documents’ in the strict sense, in so far as such disclosure may result in third parties becoming aware of commercially sensitive information or confidential information relating to the cooperation of the parties contained in the documents. As the EU judicature has already held, leniency programmes are useful tools to uncover and bring an end to infringements of the competition rules, thereby contributing to the effective application of Articles 101 and 102 TFEU. Furthermore, the effectiveness of these programmes could be compromised if documents relating to leniency proceedings were disclosed to persons wishing to bring an action for damages. The view can reasonably be taken that the prospect of such disclosure would deter persons involved in an infringement of the competition rules from having recourse to such programmes (judgments of 14 June 2011 in Pfleiderer, C‐360/09, ECR, EU:C:2011:389, paragraph 26, and Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 42). Although this case-law concerns leniency programmes established by national competition authorities, the same reasoning may be applied, by analogy, to the leniency programme of the Commission (see, to that effect, judgment of Netherlands v Commission, cited in paragraph 39 above, EU:T:2013:480, paragraph 41, and opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraphs 68 and 69), as the Commission indeed argued in its defence.

Pfleiderer

Donau Chemie and Others

Netherlands

Commission

Commission

EnBW

| 119 | However, it is also apparent from the case-law that, although such considerations may justify a refusal to grant access to certain documents included in the file of a proceeding pursuant to the competition rules, they do not necessarily mean that access may be systematically refused, since any request for access to the documents at issue must be assessed on a case-by-case basis, taking into account all the relevant factors in the case (see judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 43 and the case-law cited). |
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119

However, it is also apparent from the case-law that, although such considerations may justify a refusal to grant access to certain documents included in the file of a proceeding pursuant to the competition rules, they do not necessarily mean that access may be systematically refused, since any request for access to the documents at issue must be assessed on a case-by-case basis, taking into account all the relevant factors in the case (see judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 43 and the case-law cited).

Donau Chemie and Others

| 120 | Given the importance of actions for damages brought before national courts in ensuring the maintenance of effective competition in the European Union, the mere argument that there is a risk that access to evidence contained in a file in competition proceedings which is necessary as a basis for those actions may undermine the effectiveness of the leniency programme in which those documents were disclosed to the competent competition authority cannot justify a refusal to grant access to that evidence (see judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 46 and the case-law cited; also see, to that effect, opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraphs 70 to 74). |
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120

Given the importance of actions for damages brought before national courts in ensuring the maintenance of effective competition in the European Union, the mere argument that there is a risk that access to evidence contained in a file in competition proceedings which is necessary as a basis for those actions may undermine the effectiveness of the leniency programme in which those documents were disclosed to the competent competition authority cannot justify a refusal to grant access to that evidence (see judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 46 and the case-law cited; also see, to that effect, opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraphs 70 to 74).

Donau Chemie and Others

Commission

EnBW

| 121 | On the contrary, the fact that such a refusal is liable to prevent those actions from being brought, by giving the undertakings concerned, who may have already benefited from immunity, at the very least partial, from pecuniary penalties, an opportunity also to circumvent their obligation to compensate for the harm resulting from the infringement of Article 101 TFEU, to the detriment of the injured parties, requires that refusal to be based on overriding reasons relating to the protection of the interest relied on and applicable to each document to which access is refused (judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 47; also see, to that effect, opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraph 78). |
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121

On the contrary, the fact that such a refusal is liable to prevent those actions from being brought, by giving the undertakings concerned, who may have already benefited from immunity, at the very least partial, from pecuniary penalties, an opportunity also to circumvent their obligation to compensate for the harm resulting from the infringement of Article 101 TFEU, to the detriment of the injured parties, requires that refusal to be based on overriding reasons relating to the protection of the interest relied on and applicable to each document to which access is refused (judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 47; also see, to that effect, opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraph 78).

Donau Chemie and Others

Commission

EnBW

| 122 | Consequently, it is only if there is a risk that a given document may actually undermine the public interest relating to the effectiveness of the leniency programme in question that non-disclosure of that document may be justified (judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 48; also see, to that effect, opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraph 77). |
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122

Consequently, it is only if there is a risk that a given document may actually undermine the public interest relating to the effectiveness of the leniency programme in question that non-disclosure of that document may be justified (judgment in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraph 48; also see, to that effect, opinion of Advocate General Villalón in Commission v EnBW, cited in paragraph 12 above, EU:C:2013:643, paragraph 77).

Donau Chemie and Others

Commission

EnBW

| 123 | This is why it is settled case-law that, where the Commission or the national courts are called upon to take a decision, in legal and procedural frameworks that are admittedly different, on whether to grant access to documents collected in the context of the implementation of a leniency programme which are included in the file of a proceeding pursuant to the competition rules, they must refrain from taking an inflexible and absolute stance liable to undermine either the effective application of the competition rules by the public authorities entrusted with ensuring their observance or the effective exercise of individuals’ rights flowing from these rules. They must therefore weigh up, on a case-by-case basis, the different interests in favour of disclosure and in favour of the protection of the documents in question. In striking that balance, they are required to take into account all the relevant factors in the case and, in particular, the interest of the requesting party in securing access to the documents he seeks to have disclosed for the purpose of supporting his action for damages, in view of the other possibilities that may be open to him and the actual harmful consequences which may result from such access having regard to the public interest or the legitimate interests of other parties (see, to that effect, judgments in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraphs 30 to 34 and 44 to 45, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 107). |
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123

This is why it is settled case-law that, where the Commission or the national courts are called upon to take a decision, in legal and procedural frameworks that are admittedly different, on whether to grant access to documents collected in the context of the implementation of a leniency programme which are included in the file of a proceeding pursuant to the competition rules, they must refrain from taking an inflexible and absolute stance liable to undermine either the effective application of the competition rules by the public authorities entrusted with ensuring their observance or the effective exercise of individuals’ rights flowing from these rules. They must therefore weigh up, on a case-by-case basis, the different interests in favour of disclosure and in favour of the protection of the documents in question. In striking that balance, they are required to take into account all the relevant factors in the case and, in particular, the interest of the requesting party in securing access to the documents he seeks to have disclosed for the purpose of supporting his action for damages, in view of the other possibilities that may be open to him and the actual harmful consequences which may result from such access having regard to the public interest or the legitimate interests of other parties (see, to that effect, judgments in Donau Chemie and Others, cited in paragraph 68 above, EU:C:2013:366, paragraphs 30 to 34 and 44 to 45, and Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraph 107).

Donau Chemie and Others

Commission

EnBW

| 124 | Such considerations are even more relevant where, as in the present case, a person who considers himself to be a victim of an infringement of the competition rules and who has already brought an action for damages before a national court asks the Commission for access not to the ‘leniency documents’ included in the file of the proceeding which resulted in the decision finding that such an infringement had been committed, but only to the references to those documents contained in the table of contents of the file. If the mere argument that there is a risk that the effectiveness of a leniency programme might be undermined does not constitute a sufficient basis for a general and absolute refusal to grant access to the ‘leniency documents’ included in the file, quite apart from the actual harmful consequences which may result from disclosure of the documents, far less can it be used to justify a complete and absolute refusal to disclose mere references to those documents to the person seeking access to them for the purpose of supporting an action for damages. |
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124

Such considerations are even more relevant where, as in the present case, a person who considers himself to be a victim of an infringement of the competition rules and who has already brought an action for damages before a national court asks the Commission for access not to the ‘leniency documents’ included in the file of the proceeding which resulted in the decision finding that such an infringement had been committed, but only to the references to those documents contained in the table of contents of the file. If the mere argument that there is a risk that the effectiveness of a leniency programme might be undermined does not constitute a sufficient basis for a general and absolute refusal to grant access to the ‘leniency documents’ included in the file, quite apart from the actual harmful consequences which may result from disclosure of the documents, far less can it be used to justify a complete and absolute refusal to disclose mere references to those documents to the person seeking access to them for the purpose of supporting an action for damages.

| 125 | In the present case, the refusal is based, as the applicant correctly points out, on general and speculative considerations according to which disclosure of the references in question ‘could jeopardise’ the effectiveness of the Commission’s leniency programme and, in consequence, undermine the protection of the commercial interests of the parties to the proceeding as well as the protection of the purpose of inspections and investigations connected to that proceeding (see paragraphs 105 and 106 above). |
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125

In the present case, the refusal is based, as the applicant correctly points out, on general and speculative considerations according to which disclosure of the references in question ‘could jeopardise’ the effectiveness of the Commission’s leniency programme and, in consequence, undermine the protection of the commercial interests of the parties to the proceeding as well as the protection of the purpose of inspections and investigations connected to that proceeding (see paragraphs 105 and 106 above).

| 126 | However, these general and speculative considerations do not prove, in the present case, to the requisite factual and legal standard that there is a reasonably foreseeable risk of specific and actual harm to the interests invoked by the Commission, warranting an absolute refusal to disclose the dates, headings and other references to the ‘leniency documents’ included in the table of contents, quite apart from any confidential information they may contain or reveal. |
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126

However, these general and speculative considerations do not prove, in the present case, to the requisite factual and legal standard that there is a reasonably foreseeable risk of specific and actual harm to the interests invoked by the Commission, warranting an absolute refusal to disclose the dates, headings and other references to the ‘leniency documents’ included in the table of contents, quite apart from any confidential information they may contain or reveal.

| 127 | In short, such a refusal negates the effect of the principle that the exceptions to the right of access to documents must be interpreted and applied strictly, so as to ensure that all documents or document extracts not covered by the exceptions laid down in Regulation No 1049/2001 may be disclosed to the persons seeking access to them (see, to that effect and by analogy, judgment in Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraph 40), unless prevented by an overriding public interest. |
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127

In short, such a refusal negates the effect of the principle that the exceptions to the right of access to documents must be interpreted and applied strictly, so as to ensure that all documents or document extracts not covered by the exceptions laid down in Regulation No 1049/2001 may be disclosed to the persons seeking access to them (see, to that effect and by analogy, judgment in Council v Access Info Europe, cited in paragraph 35 above, EU:C:2013:671, paragraph 40), unless prevented by an overriding public interest.

Council

Access Info Europe

| 128 | Thirdly, in so far as both parties rely on the decision of 7 March 2012, respectively, to object to and to justify the refusal to disclose references to the ‘leniency documents’ included in the table of contents of the file in Case COMP/39.125, it should be noted that the reasoning set out in that decision and reiterated by the Commission in its defence (see paragraphs 106 and 112 above) provides no more justification for the general and absolute refusal given to the applicant in the present case than the reasoning set out in the contested decision. |
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128

Thirdly, in so far as both parties rely on the decision of 7 March 2012, respectively, to object to and to justify the refusal to disclose references to the ‘leniency documents’ included in the table of contents of the file in Case COMP/39.125, it should be noted that the reasoning set out in that decision and reiterated by the Commission in its defence (see paragraphs 106 and 112 above) provides no more justification for the general and absolute refusal given to the applicant in the present case than the reasoning set out in the contested decision.

| 129 | In particular, although the Commission relies on considerations capable of forming the basis for a complete refusal to grant access to references to some types of ‘leniency documents’ listed in the table of contents, such as references to ‘statements’ received by the Commission from undertakings that have submitted an application under the leniency programme (see, to that effect, opinion of 16 December 2010 of Advocate General Mazák in Pfleiderer, cited in paragraph 118 above, EU:C:2010:782, paragraphs 44 and 47), the decision of 7 March 2012 does not justify a refusal covering references to all of those documents. |
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129

In particular, although the Commission relies on considerations capable of forming the basis for a complete refusal to grant access to references to some types of ‘leniency documents’ listed in the table of contents, such as references to ‘statements’ received by the Commission from undertakings that have submitted an application under the leniency programme (see, to that effect, opinion of 16 December 2010 of Advocate General Mazák in Pfleiderer, cited in paragraph 118 above, EU:C:2010:782, paragraphs 44 and 47), the decision of 7 March 2012 does not justify a refusal covering references to all of those documents.

Pfleiderer

| 130 | Furthermore, it is apparent from the file that when the applicant submitted the first request to the Commission (16 February 2012) and when the Commission took a final decision in that regard (29 October 2013), the applicant was only in possession of a provisional non-confidential version of the Carglass decision. |
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130

Furthermore, it is apparent from the file that when the applicant submitted the first request to the Commission (16 February 2012) and when the Commission took a final decision in that regard (29 October 2013), the applicant was only in possession of a provisional non-confidential version of the Carglass decision.

| 131 | Although the Commission adopted that decision on 12 November 2008, it has only ever published a provisional non-confidential version of it, which the applicant annexed to its application. It was only between December 2011 and August 2012 that the ‘Competition’ Directorate-General and the Hearing Officer of the Commission respectively ruled on the content of the final non-confidential version of the decision by means of a series of measures the most recent of which went on to form the subject-matter of two actions for annulment before the General Court (Cases T‐462/12, Pilkington Group v Commission, and T‐465/12, AGC Glass Europe and Others v Commission) and an application for interim measures resulting in an order of the President of the General Court (order of 11 March 2013 in Pilkington Group v Commission, T‐462/12 R, ECR, EU:T:2013:119) followed by, on appeal, an order of the Vice-President of the Court of Justice (order of 10 September 2013 in Commission v Pilkington Group, C‐278/13 P(R), ECR, EU:C:2013:558), as the Commission recalled in its defence. However, in the light of these disputes, the final non-confidential version of the Carglass decision had not yet been published when the Commission dealt with the applicant’s two requests or, moreover, when the applicant brought the present action. |
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131

Although the Commission adopted that decision on 12 November 2008, it has only ever published a provisional non-confidential version of it, which the applicant annexed to its application. It was only between December 2011 and August 2012 that the ‘Competition’ Directorate-General and the Hearing Officer of the Commission respectively ruled on the content of the final non-confidential version of the decision by means of a series of measures the most recent of which went on to form the subject-matter of two actions for annulment before the General Court (Cases T‐462/12, Pilkington Group v Commission, and T‐465/12, AGC Glass Europe and Others v Commission) and an application for interim measures resulting in an order of the President of the General Court (order of 11 March 2013 in Pilkington Group v Commission, T‐462/12 R, ECR, EU:T:2013:119) followed by, on appeal, an order of the Vice-President of the Court of Justice (order of 10 September 2013 in Commission v Pilkington Group, C‐278/13 P(R), ECR, EU:C:2013:558), as the Commission recalled in its defence. However, in the light of these disputes, the final non-confidential version of the Carglass decision had not yet been published when the Commission dealt with the applicant’s two requests or, moreover, when the applicant brought the present action.

Pilkington Group

Commission

AGC Glass Europe and Others

Commission

Pilkington Group

Commission

Commission

Pilkington Group

| 132 | It is not possible for the applicant to identify specifically the ‘leniency documents’ included in the file in Case COMP/39.125 from the provisional non-confidential version of the Carglass decision. Although the applicant relies on information contained in these documents, the details enabling a link to be established between this information and the document or documents from which it was extracted and permitting the documents to be identified individually were largely deleted. |
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132

It is not possible for the applicant to identify specifically the ‘leniency documents’ included in the file in Case COMP/39.125 from the provisional non-confidential version of the Carglass decision. Although the applicant relies on information contained in these documents, the details enabling a link to be established between this information and the document or documents from which it was extracted and permitting the documents to be identified individually were largely deleted.

| 133 | In those circumstances, it cannot be considered that the general and absolute refusal to disclose set out in the contested decision could be justified by the considerations relied on by the Commission’s services in the decision of 7 March 2012, according to which:
  ‘In order to reconcile the legitimate interest in the transparency of its administrative procedures and the interest in preserving the attractiveness of the leniency programme, the Commission publishes a non-confidential version of its final decisions, in which it identifies all of the cartel participants and sets out the constituent elements of this infringement of the competition rules.
  For reasons which will be explained below, information concerning correspondence from parties that have submitted an application under the leniency programme or correspondence exchanged with them ... which is included in the table of contents and which has not yet been disclosed by way of a published decision ... is covered by [the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001].
  ...
  In those circumstances, the provision of information on correspondence exchanged within the framework of the leniency programme other than the information contained in the public version of the [Carglass] decision ... would undermine the protection of commercial interests.
  ...
  In the provisional public version of the [Carglass] decision, the Commission already disclosed some of the information set out in the table of contents (in particular, the identity of the undertakings that had submitted an application under the leniency programme and the date of the decision granting their application). Before doing so, it weighed up the importance of such disclosure against the possible adverse consequences of such disclosure on the effective implementation of the leniency programme (and, therefore, on the application of Article 101 TFEU). All other references concerning this kind of correspondence were, however, expunged from the annexed table of contents, because any further identification [of the] documents [in question] could undermine the “purpose of the Commission’s investigations” and the “commercial interests” of the parties to the proceeding’ (penultimate and final subparagraph of point 1.1, final subparagraph of point 1.2, and penultimate subparagraph of point 1.3 of the decision of 7 March 2012). |
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133

In those circumstances, it cannot be considered that the general and absolute refusal to disclose set out in the contested decision could be justified by the considerations relied on by the Commission’s services in the decision of 7 March 2012, according to which:

‘In order to reconcile the legitimate interest in the transparency of its administrative procedures and the interest in preserving the attractiveness of the leniency programme, the Commission publishes a non-confidential version of its final decisions, in which it identifies all of the cartel participants and sets out the constituent elements of this infringement of the competition rules.

For reasons which will be explained below, information concerning correspondence from parties that have submitted an application under the leniency programme or correspondence exchanged with them ... which is included in the table of contents and which has not yet been disclosed by way of a published decision ... is covered by [the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001].

...

In those circumstances, the provision of information on correspondence exchanged within the framework of the leniency programme other than the information contained in the public version of the [Carglass] decision ... would undermine the protection of commercial interests.

...

In the provisional public version of the [Carglass] decision, the Commission already disclosed some of the information set out in the table of contents (in particular, the identity of the undertakings that had submitted an application under the leniency programme and the date of the decision granting their application). Before doing so, it weighed up the importance of such disclosure against the possible adverse consequences of such disclosure on the effective implementation of the leniency programme (and, therefore, on the application of Article 101 TFEU). All other references concerning this kind of correspondence were, however, expunged from the annexed table of contents, because any further identification [of the] documents [in question] could undermine the “purpose of the Commission’s investigations” and the “commercial interests” of the parties to the proceeding’ (penultimate and final subparagraph of point 1.1, final subparagraph of point 1.2, and penultimate subparagraph of point 1.3 of the decision of 7 March 2012).

| 134 | On the contrary, in so far as the contested decision and the decision of 7 March 2012, by referring to the provisional non-confidential version of the Carglass decision, made it in practice impossible or at the very least excessively difficult to identify the ‘leniency documents’ listed in the table of contents requested by the applicant, in contrast to the way in which the references to other documents included in the file were dealt with (see paragraphs 75, 104 and 114 above), they did not provide a means for the applicant either to form an opinion on the possible need to have these documents in order to support its action for damages before the Landgericht Düsseldorf or, a fortiori, to explain the reasons for such a need. The case-law makes compliance with this requirement a precondition not only for disclosure of such documents and their production in legal proceedings in the context of actions for damages brought before the national courts (see paragraph 69 above), but also the recognition by the Commission of an overriding public interest where it receives a request under Regulation No 1049/2001 (see paragraph 70 above). In doing so, the contested decision, in practice, prevents the applicant from actually exercising the right to compensation it enjoys under the Treaty. |
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134

On the contrary, in so far as the contested decision and the decision of 7 March 2012, by referring to the provisional non-confidential version of the Carglass decision, made it in practice impossible or at the very least excessively difficult to identify the ‘leniency documents’ listed in the table of contents requested by the applicant, in contrast to the way in which the references to other documents included in the file were dealt with (see paragraphs 75, 104 and 114 above), they did not provide a means for the applicant either to form an opinion on the possible need to have these documents in order to support its action for damages before the Landgericht Düsseldorf or, a fortiori, to explain the reasons for such a need. The case-law makes compliance with this requirement a precondition not only for disclosure of such documents and their production in legal proceedings in the context of actions for damages brought before the national courts (see paragraph 69 above), but also the recognition by the Commission of an overriding public interest where it receives a request under Regulation No 1049/2001 (see paragraph 70 above). In doing so, the contested decision, in practice, prevents the applicant from actually exercising the right to compensation it enjoys under the Treaty.

a fortiori

| 135 | Fourthly, moreover, in so far as the Commission relied on, at the hearing, the need to protect its leniency programme and the documents relating to it in all cases, in view of the key role played by that programme in detecting infringements of the competition rules, as acknowledged by Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1), it is necessary to make two observations. The case-law recognises the value of this programme, but at the same time points out that the public interest in preserving its effectiveness cannot be considered to take precedence, in a general and absolute way, over the other public and private interests at stake, which are also worthy of protection and must be reconciled with it on a case-by-case basis (see paragraphs 118 to 123 above). In addition, recital 20 in the preamble to, and Article 6(2) of, Directive 2014/104 expressly state that this directive is without prejudice to the rules on public access to documents laid down in Regulation No 1049/2001, as the Commission moreover noted in its rejoinder (see paragraph 58 above). |
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135

Fourthly, moreover, in so far as the Commission relied on, at the hearing, the need to protect its leniency programme and the documents relating to it in all cases, in view of the key role played by that programme in detecting infringements of the competition rules, as acknowledged by Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1), it is necessary to make two observations. The case-law recognises the value of this programme, but at the same time points out that the public interest in preserving its effectiveness cannot be considered to take precedence, in a general and absolute way, over the other public and private interests at stake, which are also worthy of protection and must be reconciled with it on a case-by-case basis (see paragraphs 118 to 123 above). In addition, recital 20 in the preamble to, and Article 6(2) of, Directive 2014/104 expressly state that this directive is without prejudice to the rules on public access to documents laid down in Regulation No 1049/2001, as the Commission moreover noted in its rejoinder (see paragraph 58 above).

| 136 | It follows from all of the foregoing considerations that the contested decision is not substantiated to the requisite legal standard in so far as it finds that it is possible to presume, in a global, complete and absolute way, that allowing the applicant access to references to the ‘leniency documents’ in the table of contents of the file in Case COMP/39.125 would undermine the interests protected by the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001. |
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136

It follows from all of the foregoing considerations that the contested decision is not substantiated to the requisite legal standard in so far as it finds that it is possible to presume, in a global, complete and absolute way, that allowing the applicant access to references to the ‘leniency documents’ in the table of contents of the file in Case COMP/39.125 would undermine the interests protected by the exceptions laid down in the first and third indents of Article 4(2) of Regulation No 1049/2001.

b) The refusal to grant access to information relating to the identity of natural persons

| 137 | In point 5.2 of the contested decision, the Commission stated that information relating to the identity of natural persons included in the table of contents could not be disclosed to the applicant. In order to reach that conclusion, it found, first of all, that this information constituted personal data within the meaning of Article 4(1)(b) of Regulation No 1049/2001 and Articles 2(a) and 8(b) of Regulation EC No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1). The Commission then considered that the applicant had not proven why it was necessary for the data to be transferred to it and that there was reason to believe that their disclosure could undermine the legitimate interests of the persons to whom they related. |
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137

In point 5.2 of the contested decision, the Commission stated that information relating to the identity of natural persons included in the table of contents could not be disclosed to the applicant. In order to reach that conclusion, it found, first of all, that this information constituted personal data within the meaning of Article 4(1)(b) of Regulation No 1049/2001 and Articles 2(a) and 8(b) of Regulation EC No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1). The Commission then considered that the applicant had not proven why it was necessary for the data to be transferred to it and that there was reason to believe that their disclosure could undermine the legitimate interests of the persons to whom they related.

| 138 | Article 4(1)(b) of Regulation No 1049/2001 provides that the institutions are to refuse access to a document if its disclosure would undermine the protection of the privacy or integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data. |
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138

Article 4(1)(b) of Regulation No 1049/2001 provides that the institutions are to refuse access to a document if its disclosure would undermine the protection of the privacy or integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data.

| 139 | That provision, which establishes a specific and reinforced system of protection for persons whose personal data could, in certain cases, be disclosed to the public, requires that any undermining of their privacy and integrity must always be examined and assessed in conformity, in particular, with Regulation No 45/2001 (judgment of 29 June 2010 in Commission v Bavarian Lager, C‐28/08 P, ECR, EU:C:2010:378, paragraphs 59 and 60). |
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139

That provision, which establishes a specific and reinforced system of protection for persons whose personal data could, in certain cases, be disclosed to the public, requires that any undermining of their privacy and integrity must always be examined and assessed in conformity, in particular, with Regulation No 45/2001 (judgment of 29 June 2010 in Commission v Bavarian Lager, C‐28/08 P, ECR, EU:C:2010:378, paragraphs 59 and 60).

Commission

Bavarian Lager

| 140 | Article 2 of Regulation No 45/2001 states that personal data is to mean any information relating to an identified or identifiable natural person and that processing of personal data is to mean any operation performed upon personal data, including retrieval and disclosure by transmission, dissemination or otherwise making available. |
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140

Article 2 of Regulation No 45/2001 states that personal data is to mean any information relating to an identified or identifiable natural person and that processing of personal data is to mean any operation performed upon personal data, including retrieval and disclosure by transmission, dissemination or otherwise making available.

| 141 | Article 8(b) of Regulation No 45/2001 provides, in particular, that personal data is only to be transferred to a recipient if the recipient establishes the necessity of such transfer and if there is no reason to assume that the data subject’s legitimate interests might be prejudiced. This provision applies to all requests based on Regulation No 1049/2001 seeking to obtain access to documents including personal data (judgments in Commission v Bavarian Lager, cited in paragraph 139 above, EU:C:2010:378, paragraph 63, and 2 October 2014Strack v Commission, C‐127/13 P, ECR, EU:C:2014:2250, paragraph 101). |
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141

Article 8(b) of Regulation No 45/2001 provides, in particular, that personal data is only to be transferred to a recipient if the recipient establishes the necessity of such transfer and if there is no reason to assume that the data subject’s legitimate interests might be prejudiced. This provision applies to all requests based on Regulation No 1049/2001 seeking to obtain access to documents including personal data (judgments in Commission v Bavarian Lager, cited in paragraph 139 above, EU:C:2010:378, paragraph 63, and 2 October 2014Strack v Commission, C‐127/13 P, ECR, EU:C:2014:2250, paragraph 101).

Commission

Bavarian Lager

Strack

Commission

| 142 | In the present case, the applicant does not call in question the Commission’s finding that information relating to the identity of certain natural persons included in the table of contents constituted personal data. Nor does it deny that its request seeking disclosure of this information constituted processing of personal data. Its only criticism is of the reasoning adopted by the Commission to refuse disclosure of the information to it. In essence, the applicant complains that the Commission came to that conclusion based on general reasoning relating to the protection of privacy, instead of explaining in detail the individual reasons why each item of information could not be disclosed to it. |
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142

In the present case, the applicant does not call in question the Commission’s finding that information relating to the identity of certain natural persons included in the table of contents constituted personal data. Nor does it deny that its request seeking disclosure of this information constituted processing of personal data. Its only criticism is of the reasoning adopted by the Commission to refuse disclosure of the information to it. In essence, the applicant complains that the Commission came to that conclusion based on general reasoning relating to the protection of privacy, instead of explaining in detail the individual reasons why each item of information could not be disclosed to it.

| 143 | However, the Commission was, in the first place, fully entitled to require the applicant to establish the necessity for the personal data in question to be transferred, in accordance with Article 8(b) of Regulation No 45/2001. Where the person who requests access to documents containing personal data does not provide any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the Commission is not able to weigh up the various interests at stake (see, to that effect, judgments in Commission v Bavarian Lager, cited in paragraph 139 above, EU:C:2010:378, paragraphs 77 and 78, and Strack v Commission, cited in paragraph 141 above, EU:C:2014:2250, paragraph 107). |
| --- | --- |

143

However, the Commission was, in the first place, fully entitled to require the applicant to establish the necessity for the personal data in question to be transferred, in accordance with Article 8(b) of Regulation No 45/2001. Where the person who requests access to documents containing personal data does not provide any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred, the Commission is not able to weigh up the various interests at stake (see, to that effect, judgments in Commission v Bavarian Lager, cited in paragraph 139 above, EU:C:2010:378, paragraphs 77 and 78, and Strack v Commission, cited in paragraph 141 above, EU:C:2014:2250, paragraph 107).

Commission

Bavarian Lager

Strack

Commission

| 144 | In the second place, the Commission was able to find, in the light of the arguments specifically put forward by the applicant, that such necessity had not been proven in this case. |
| --- | --- |

144

In the second place, the Commission was able to find, in the light of the arguments specifically put forward by the applicant, that such necessity had not been proven in this case.

| 145 | It is apparent from the contested decision that the applicant had justified the necessity for the data in question to be transferred to it by the fact that ‘the information provided on the names of the natural persons “... [was] too limited to enable [the applicant] to exercise its rights”’. The applicant does not dispute this finding of the Commission in its action. On the contrary, the applicant continues to maintain before the Court that, first, it ‘needs this information’; secondly, ‘if the names of the persons concerned are not included in the table of contents, too, its right of access will be considerably weakened, because this is the only way it can identify the important documents’; and thirdly, ‘[e]ven if [it] has to demonstrate the necessity of providing the names of the natural persons (quod non ...), this condition is in any event satisfied’ since it has ‘sufficiently demonstrated that it need[ed] this information to be able to secure compensation for the loss caused to it’. |
| --- | --- |

145

It is apparent from the contested decision that the applicant had justified the necessity for the data in question to be transferred to it by the fact that ‘the information provided on the names of the natural persons “... [was] too limited to enable [the applicant] to exercise its rights”’. The applicant does not dispute this finding of the Commission in its action. On the contrary, the applicant continues to maintain before the Court that, first, it ‘needs this information’; secondly, ‘if the names of the persons concerned are not included in the table of contents, too, its right of access will be considerably weakened, because this is the only way it can identify the important documents’; and thirdly, ‘[e]ven if [it] has to demonstrate the necessity of providing the names of the natural persons (quod non ...), this condition is in any event satisfied’ since it has ‘sufficiently demonstrated that it need[ed] this information to be able to secure compensation for the loss caused to it’.

quod non

| 146 | Presented with general and abstract reasons in this regard, the Commission was able to confine itself to finding, in a global manner, that it ‘saw no reason justifying public disclosure of the data [in question]’ and that ‘the necessity for the personal data at issue to be transferred ... was not proven’ (see, by analogy, judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 105 and 132). |
| --- | --- |

146

Presented with general and abstract reasons in this regard, the Commission was able to confine itself to finding, in a global manner, that it ‘saw no reason justifying public disclosure of the data [in question]’ and that ‘the necessity for the personal data at issue to be transferred ... was not proven’ (see, by analogy, judgment in Commission v EnBW, cited in paragraph 12 above, EU:C:2014:112, paragraphs 105 and 132).

Commission

EnBW

| 147 | The arguments challenging the refusal to grant access to information relating to the identity of natural persons must therefore be rejected. |
| --- | --- |

147

The arguments challenging the refusal to grant access to information relating to the identity of natural persons must therefore be rejected.

c) The refusal to grant access to the names of third-party undertakings

| 148 | In point 5.3 of the contested decision, the Commission found that the names of different categories of undertakings ‘operating in the lift and escalator sector’ or which had business dealings with the undertakings to which the Carglass decision was addressed could not be made known to the applicant because disclosure of their identity and, therefore, their involvement in the proceeding or their business dealings with the parties to the proceeding could damage their reputation and undermine their commercial interests. |
| --- | --- |

148

In point 5.3 of the contested decision, the Commission found that the names of different categories of undertakings ‘operating in the lift and escalator sector’ or which had business dealings with the undertakings to which the Carglass decision was addressed could not be made known to the applicant because disclosure of their identity and, therefore, their involvement in the proceeding or their business dealings with the parties to the proceeding could damage their reputation and undermine their commercial interests.

| 149 | It is obvious that, notwithstanding the clerical mistake in the contested decision, there could be no reasonable doubt that the Commission intended to refer, as it did in its defence without being challenged in that respect, to the names of undertakings operating not only in the lift and escalator sector, but also in the carglass sector, which is the only sector mentioned in Case COMP/39.125. It is therefore not possible to find that the statement of reasons was inadequate. |
| --- | --- |

149

It is obvious that, notwithstanding the clerical mistake in the contested decision, there could be no reasonable doubt that the Commission intended to refer, as it did in its defence without being challenged in that respect, to the names of undertakings operating not only in the lift and escalator sector, but also in the carglass sector, which is the only sector mentioned in Case COMP/39.125. It is therefore not possible to find that the statement of reasons was inadequate.

| 150 | As to the substance, it should be recalled, first of all, that the Commission was able, without committing an error of law, to refuse the applicant’s first request in so far as it related to the category of information in question by relying on a general presumption (see paragraph 94 above). |
| --- | --- |

150

As to the substance, it should be recalled, first of all, that the Commission was able, without committing an error of law, to refuse the applicant’s first request in so far as it related to the category of information in question by relying on a general presumption (see paragraph 94 above).

| 151 | Next, it must be considered that, by referring to the ‘reputation’ and ‘commercial interests’ of the different categories of undertakings concerned in order to refuse to disclose their names to the applicant, the Commission essentially sought to rely, in particular, on the general presumption that disclosure of the identity of these legal persons could, in principle, undermine the protection of the commercial interests of third parties guaranteed by the first indent of Article 4(2) of Regulation No 1049/2001, as the Commission noted in its defence without being challenged in that respect. |
| --- | --- |

151

Next, it must be considered that, by referring to the ‘reputation’ and ‘commercial interests’ of the different categories of undertakings concerned in order to refuse to disclose their names to the applicant, the Commission essentially sought to rely, in particular, on the general presumption that disclosure of the identity of these legal persons could, in principle, undermine the protection of the commercial interests of third parties guaranteed by the first indent of Article 4(2) of Regulation No 1049/2001, as the Commission noted in its defence without being challenged in that respect.

| 152 | Lastly, the applicant does not properly challenge the application of this general presumption. |
| --- | --- |

152

Lastly, the applicant does not properly challenge the application of this general presumption.

| 153 | It merely objects to the actual possibility for the Commission to apply such a presumption. It is apparent from the case-law cited in paragraphs 39 and 44 above that the Commission, which is required to collect, in the context of proceedings pursuant to the competition rules, commercially sensitive information relating to the strategy and activities of the parties to the proceeding as well as their business dealings with third parties, is entitled to do so. |
| --- | --- |

153

It merely objects to the actual possibility for the Commission to apply such a presumption. It is apparent from the case-law cited in paragraphs 39 and 44 above that the Commission, which is required to collect, in the context of proceedings pursuant to the competition rules, commercially sensitive information relating to the strategy and activities of the parties to the proceeding as well as their business dealings with third parties, is entitled to do so.

| 154 | Furthermore, the applicant submits that the business dealings which may come to light as a result of disclosing the identity of the legal persons mentioned in the table of contents date from more than five years ago and are therefore too ‘old’ to be regarded as covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001. This argument, besides being too general to be capable of rebutting the general presumption invoked by the Commission, is not conclusive. Admittedly, it has been held that information falling within the ambit of commercial secrecy or confidential information which is five or more years old must be treated as historic unless, by way of exception, it is proven that such information still constitutes an essential element of the commercial position of the undertaking to which it relates (see order of 22 February 2005 in Hynix Semiconductor v Council, T‐383/03, ECR, EU:T:2005:57, paragraph 60 and the case-law cited). It has also been held, more generally, that the negative effects liable to follow upon the disclosure of commercially sensitive information become less significant the older the information is (see, to that effect, order of 19 June 1996 in NMH Stahlwerke and Others v Commission, T‐134/94, T‐136/94 to T‐138/94, T‐141/94, T‐145/94, T‐147/94, T‐148/94, T‐151/94, T‐156/94 and T‐157/94, EU:T:1996:85, paragraphs 24 and 32). However, that does not prevent such information continuing to be covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001, as is apparent from the case-law cited in paragraph 63 above. |
| --- | --- |

154

Furthermore, the applicant submits that the business dealings which may come to light as a result of disclosing the identity of the legal persons mentioned in the table of contents date from more than five years ago and are therefore too ‘old’ to be regarded as covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001. This argument, besides being too general to be capable of rebutting the general presumption invoked by the Commission, is not conclusive. Admittedly, it has been held that information falling within the ambit of commercial secrecy or confidential information which is five or more years old must be treated as historic unless, by way of exception, it is proven that such information still constitutes an essential element of the commercial position of the undertaking to which it relates (see order of 22 February 2005 in Hynix Semiconductor v Council, T‐383/03, ECR, EU:T:2005:57, paragraph 60 and the case-law cited). It has also been held, more generally, that the negative effects liable to follow upon the disclosure of commercially sensitive information become less significant the older the information is (see, to that effect, order of 19 June 1996 in NMH Stahlwerke and Others v Commission, T‐134/94, T‐136/94 to T‐138/94, T‐141/94, T‐145/94, T‐147/94, T‐148/94, T‐151/94, T‐156/94 and T‐157/94, EU:T:1996:85, paragraphs 24 and 32). However, that does not prevent such information continuing to be covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001, as is apparent from the case-law cited in paragraph 63 above.

Hynix Semiconductor

Council

NMH Stahlwerke and Others

Commission

| 155 | The arguments challenging the refusal to grant access to the names of third-party undertakings must therefore be rejected, without it being necessary to consider whether these references should also be regarded as personal data, as the Commission submits in its defence, notwithstanding the fact that there are no considerations to that effect in either the contested decision or the decision of 7 March 2012, which invokes this ground for refusal only in relation to the names of natural persons included in the table of contents. |
| --- | --- |

155

The arguments challenging the refusal to grant access to the names of third-party undertakings must therefore be rejected, without it being necessary to consider whether these references should also be regarded as personal data, as the Commission submits in its defence, notwithstanding the fact that there are no considerations to that effect in either the contested decision or the decision of 7 March 2012, which invokes this ground for refusal only in relation to the names of natural persons included in the table of contents.

d) The refusal to grant access to other commercially sensitive information

| 156 | In point 5.4 of the contested decision, the Commission stated that there was commercially sensitive information in the table of contents, including the names of car manufacturers and references to vehicle models. It also observed that actions for annulment specifically relating to the question whether some of this information should continue to be treated as confidential or whether, on the contrary, it could be included in the final non-confidential version of the Carglass decision had been brought before the General Court by a number of the undertakings to which the decision was addressed. For these reasons, it concluded that it could not, ‘at this stage, disclose information which might remain confidential following the judgments of the General Court’. |
| --- | --- |

156

In point 5.4 of the contested decision, the Commission stated that there was commercially sensitive information in the table of contents, including the names of car manufacturers and references to vehicle models. It also observed that actions for annulment specifically relating to the question whether some of this information should continue to be treated as confidential or whether, on the contrary, it could be included in the final non-confidential version of the Carglass decision had been brought before the General Court by a number of the undertakings to which the decision was addressed. For these reasons, it concluded that it could not, ‘at this stage, disclose information which might remain confidential following the judgments of the General Court’.

| 157 | In the first place, although the statement of reasons for the contested decision is relatively concise, it is none the less sufficiently detailed to have enabled the applicant to understand its content and the General Court to review its legality. |
| --- | --- |

157

In the first place, although the statement of reasons for the contested decision is relatively concise, it is none the less sufficiently detailed to have enabled the applicant to understand its content and the General Court to review its legality.

| 158 | In the second place, as to the substance, the applicant does not properly challenge the reasoning which led the Commission to find that the information in question was covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001. |
| --- | --- |

158

In the second place, as to the substance, the applicant does not properly challenge the reasoning which led the Commission to find that the information in question was covered by the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001.

| 159 | The applicant simply states that the actions invoked by the Commission concern whether the information in question should be made accessible to the general public, while its own action concerns whether such information should be disclosed to a person who considers himself to have been harmed by the infringement established in the Carglass decision, and that a balance must be struck between the interests at stake in different ways in these two situations. This argument is essentially tantamount to claiming that an overriding public interest should prevail over the exception relied on by the Commission to refuse disclosure of the data concerned. Consequently, it is no different from the alternative argument put forward in this regard, as the applicant moreover admits in its application. It will therefore be examined in that context (see paragraphs 162 et seq. below). |
| --- | --- |

159

The applicant simply states that the actions invoked by the Commission concern whether the information in question should be made accessible to the general public, while its own action concerns whether such information should be disclosed to a person who considers himself to have been harmed by the infringement established in the Carglass decision, and that a balance must be struck between the interests at stake in different ways in these two situations. This argument is essentially tantamount to claiming that an overriding public interest should prevail over the exception relied on by the Commission to refuse disclosure of the data concerned. Consequently, it is no different from the alternative argument put forward in this regard, as the applicant moreover admits in its application. It will therefore be examined in that context (see paragraphs 162 et seq. below).

| 160 | The applicant’s argument challenging the general presumption which the Commission’s services invoked, in the decision of 7 March 2012, as an additional basis for refusing to disclose the information in question is devoid of purpose. In the contested decision, the Commission did not reproduce this general presumption, according to which disclosure of the information would, in principle, undermine the protection of the commercial interests of the parties to the proceeding, in contrast to the submissions made in its defence. On the contrary, the Commission merely refused disclosure ‘at this stage’, in view of the actions pending before the General Court. |
| --- | --- |

160

The applicant’s argument challenging the general presumption which the Commission’s services invoked, in the decision of 7 March 2012, as an additional basis for refusing to disclose the information in question is devoid of purpose. In the contested decision, the Commission did not reproduce this general presumption, according to which disclosure of the information would, in principle, undermine the protection of the commercial interests of the parties to the proceeding, in contrast to the submissions made in its defence. On the contrary, the Commission merely refused disclosure ‘at this stage’, in view of the actions pending before the General Court.

| 161 | The arguments challenging the refusal to grant access to other commercially sensitive information cannot therefore succeed. |
| --- | --- |

161

The arguments challenging the refusal to grant access to other commercially sensitive information cannot therefore succeed.

2. The overriding public interest invoked by the applicant

The overriding public interest invoked by the applicant

| 162 | In its arguments challenging the refusal to grant access to information relating to the names of natural persons and to other commercially sensitive information, the applicant submits that the Commission was wrong not to take account of the overriding public interest in allowing the victims of anticompetitive practices to exercise their right to compensation and was also wrong not to give precedence to this interest over the interests protected by the exceptions relied on in the contested decision in order to refuse to disclose such information to it, even though such information was necessary for the effective exercise of its right to compensation. |
| --- | --- |

162

In its arguments challenging the refusal to grant access to information relating to the names of natural persons and to other commercially sensitive information, the applicant submits that the Commission was wrong not to take account of the overriding public interest in allowing the victims of anticompetitive practices to exercise their right to compensation and was also wrong not to give precedence to this interest over the interests protected by the exceptions relied on in the contested decision in order to refuse to disclose such information to it, even though such information was necessary for the effective exercise of its right to compensation.

| 163 | It is apparent from the case-law cited in paragraphs 66 to 70 above that such general considerations are not, as such, capable of prevailing over the reasons justifying a refusal to grant access to the documents in the file of a proceeding pursuant to the competition rules. It follows that any person seeking compensation for the loss he considers was caused to him by a breach of the EU rules on competition must establish that it is necessary for him to be granted access to these documents, so that the Commission can weigh up, on a case-by-case basis, the respective interests at stake. Otherwise, the interest in obtaining compensation for the loss suffered as a result of a breach of the EU rules on competition cannot constitute an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001. |
| --- | --- |

163

It is apparent from the case-law cited in paragraphs 66 to 70 above that such general considerations are not, as such, capable of prevailing over the reasons justifying a refusal to grant access to the documents in the file of a proceeding pursuant to the competition rules. It follows that any person seeking compensation for the loss he considers was caused to him by a breach of the EU rules on competition must establish that it is necessary for him to be granted access to these documents, so that the Commission can weigh up, on a case-by-case basis, the respective interests at stake. Otherwise, the interest in obtaining compensation for the loss suffered as a result of a breach of the EU rules on competition cannot constitute an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001.

| 164 | In the present case, the applicant asserts, in a general and abstract way, that it is necessary for him to have access to all of the names of natural persons mentioned in the table of contents and all of the commercial information contained in that document so that he can exercise his right to compensation. |
| --- | --- |

164

In the present case, the applicant asserts, in a general and abstract way, that it is necessary for him to have access to all of the names of natural persons mentioned in the table of contents and all of the commercial information contained in that document so that he can exercise his right to compensation.

| 165 | By contrast, the applicant does not put forward in the present action, nor does it claim to have adduced in the request or confirmatory application previously submitted to the Commission, specific evidence proving that it needed particular information, for example by setting out the specific factual or legal arguments which securing such information might help it substantiate before the national court required to rule on its claims. |
| --- | --- |

165

By contrast, the applicant does not put forward in the present action, nor does it claim to have adduced in the request or confirmatory application previously submitted to the Commission, specific evidence proving that it needed particular information, for example by setting out the specific factual or legal arguments which securing such information might help it substantiate before the national court required to rule on its claims.

| 166 | Accordingly, the arguments based on the existence of an overriding public interest must be rejected, as the Commission rightly points out. |
| --- | --- |

166

Accordingly, the arguments based on the existence of an overriding public interest must be rejected, as the Commission rightly points out.

| 167 | Having regard to all of the preceding considerations, the present pleas in law must be upheld in so far as they relate to the refusal to grant the applicant access to the references to the ‘leniency documents’ included in the table of contents of the file in Case COMP/39.125 and must be rejected as to the remainder. |
| --- | --- |

167

Having regard to all of the preceding considerations, the present pleas in law must be upheld in so far as they relate to the refusal to grant the applicant access to the references to the ‘leniency documents’ included in the table of contents of the file in Case COMP/39.125 and must be rejected as to the remainder.

| 168 | Consequently, the contested decision must be annulled to that extent. |
| --- | --- |

168

Consequently, the contested decision must be annulled to that extent.

Costs

Costs

| 169 | Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. Furthermore, under Article 138(3) of the Rules of Procedure, the Court may order that an intervener other than those referred to in paragraphs 1 and 2 of that article is to bear his own costs. |
| --- | --- |

169

Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. Furthermore, under Article 138(3) of the Rules of Procedure, the Court may order that an intervener other than those referred to in paragraphs 1 and 2 of that article is to bear his own costs.

| 170 | In the present case, since the applicant and the Commission were both unsuccessful on some of their heads, each will bear its own costs. In addition, SGSD will bear its own costs. |
| --- | --- |

170

In the present case, since the applicant and the Commission were both unsuccessful on some of their heads, each will bear its own costs. In addition, SGSD will bear its own costs.

| | On those grounds,
  THE GENERAL COURT (Third Chamber)
  hereby: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

| | 1. | Annuls Commission Decision 2012/817 and 2012/3021 Gestdem of 29 October 2013, refusing two requests for access to documents in the file of Case COMP/39.125 (Carglass) in so far as it refuses to grant Axa Versicherung AG access to references to the ‘leniency documents’ included in the table of contents of that file; |
| --- | --- | --- |

1.

1.

Annuls Commission Decision 2012/817 and 2012/3021 Gestdem of 29 October 2013, refusing two requests for access to documents in the file of Case COMP/39.125 (Carglass) in so far as it refuses to grant Axa Versicherung AG access to references to the ‘leniency documents’ included in the table of contents of that file;

Annuls Commission Decision 2012/817 and 2012/3021 Gestdem of 29 October 2013, refusing two requests for access to documents in the file of Case COMP/39.125 (Carglass) in so far as it refuses to grant Axa Versicherung AG access to references to the ‘leniency documents’ included in the table of contents of that file;

| | 2. | Dismisses the remainder of the action; |
| --- | --- | --- |

2.

2.

Dismisses the remainder of the action;

Dismisses the remainder of the action;

| | 3. | Orders Axa Versicherung and the European Commission each to bear their own costs; |
| --- | --- | --- |

3.

3.

Orders Axa Versicherung and the European Commission each to bear their own costs;

Orders Axa Versicherung and the European Commission each to bear their own costs;

| | 4. | Orders Saint-Gobain Sekurit Deutschland GmbH & Co. KG to bear its own costs. |
| --- | --- | --- |

4.

4.

Orders Saint-Gobain Sekurit Deutschland GmbH & Co. KG to bear its own costs.

Orders Saint-Gobain Sekurit Deutschland GmbH & Co. KG to bear its own costs.

| | Papasavvas
  
  
  Forwood
  
  
  Bieliūnas
  
  
  Delivered in open court in Luxembourg on 7 July 2015.
  [Signatures] |
| --- | --- |

Papasavvas

Forwood

Bieliūnas

Delivered in open court in Luxembourg on 7 July 2015.

[Signatures]

---

(
  *1
  )	Language of the case: German.

*1